Justice Dickson and the Development of Indiana Civil Tort Law

by Nate Moyer, 2L Note Candidate

Last spring, Justice Brent Dickson retired from the Indiana Supreme Court. [http://wishtv.com/2016/04/29/justice-dickson-hailed-for-his-civility-grace-at-retirement/]. Justice Dickson served Indiana for thirty years, and his retirement will mark the end for Professional Photoone of Indiana’s longest Supreme Court tenures. Governor Robert Orr appointed Justice Dickson to Indiana’s highest court in 1986. Since that time, Justice Dickson has contributed an extensive amount of legal opinions. Further, from 2012 to 2014, Dickson presided over the Court as Chief Justice. [http://www.in.gov/judiciary/4047.htm]. He was then stepped-down from Chief Justice, a position that is now held by Chief Justice Loretta H. Rush.

Justice Dickson was viewed as a pragmatic and wise judge who valued the citizen’s right to a fair and open trial. As a send-off for the esteemed Justice, Roger Pardieck, Karen Davis and Maggie Smith’s article in the Indiana Law Review examines Dickson’s methodology and legal analysis for civil suits. Justice Dickson’s Civil Tort Law Jurisprudence, 50 Ind. L. Rev. 103 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p103.pdf). The article analyzes Dickson’s opinions in the landmark decisions of Jarboe v. Landmark Community Newspapers of Indiana, and Myers v. Crouse-Hinds Division of Cooper Industries. In Jarboe v. Landmark Community Newspapers of Indiana, the Justice’s opinion focused on how summary judgment may hastily deny a person’s day in court. In Myers v. Crouse-Hinds Division of Cooper Industries, the Justice respected the doctrine of stare decisis, despite his own misgivings. Dickson’s jurisprudence did not always carry the day, however, and therefore this article also covers his dissents in Allied Signal v. Ott, and McIntosh v. Melroe. The purpose of this is to demonstrate how Justice Dickson would strictly adhere to not only his own principles, but also the Indiana Constitution.

Prior to being appointed to the Indiana Supreme Court, Justice Dickson was an attorney working in private practice. Justice Dickson graduated from the Indiana University School of Law in Indianapolis in 1968. After his retirement, Dickson intends to still assist with court administration, although he will hear no cases. [http://www.theindianalawyer.com/justice-brent-dickson-announces-retirement/PARAMS/article/38676]. This past June, Governor Mike Pence appointed Geoffery G. Slaughter to Indiana’s highest court as Dickson’s successor. Indiana Supreme Court Justices are required to retire by the age of seventy-five.

Rethinking Partisanship and its Effects on the Federal Judiciary

by Allan Griffey, 2L Note Candidate

What has the reputation of being fair, competent, and independent? The federal judiciary. Judge Hamilton, of the Seventh Circuit, assiduously explains how partisanship in the executive and legislative branches of the federal government can directly, or indirectly, influence the federal judiciary in his article in the Indiana Law Review. Hon. David F. Hamilton, Federal Courts and Partisan Conflicts, 50 Ind. L. Rev. 127 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p127.pdf). Judge Hamilton’s article contemplates to answer: (1) how partisanship in the other branches of federal government affect the federal judiciary; (2) what the federal judiciary can do to protect itself from theJ16_4172 partisanship of the other branches; and (3) what the federal judiciary can do, if anything, to avoid worsening the affairs of the other branches.

In undertaking the first question, Judge Hamilton calls to attention that partisanship from the other branches becomes highly visible during federal judiciary appointments. He illustrates this point by referencing his 2009 nomination to the Court of Appeals where U.S. Senate committee procedures slowed his confirmation. Additionally, the manner in which nomination and appointments are being handle by the executive and legislative branches of the federal government, Judge Hamilton argues, is “increas[ing] the temptation for judges and justices to make strategic decisions about when they will retire or take senior status.” Thus, threatening the function of the federal judiciary nomination and confirmation process.

In addressing the second question, Judge Hamilton proposes that if federal judges thoroughly do their job, avoid self-inflicted wounds on the judiciary’s reputation, and show the American public, then the federal judiciary will be protected from the partisanship of the other branches. By avoiding conflicts of interest and controversial off-the-job conduct, the public’s perception of a partisan judiciary should diminish. Further, refraining from “rhetorical incivility,” which Judge Hamilton describes as excessively harsh rhetoric in judicial opinions, is crucial to the judiciary’s aspiration to protect itself from partisanship.

Lastly, the article suggests that federal judges should remain humble and bear in mind the law of unintended consequences when deciding on doctrines that directly affect the political system. These particular doctrinal areas of the law include campaign finance, voting rights, state redistricting, and the extent of the political question doctrine. In conclusion, Judge Hamilton’s article brings into perspective the effects of executive and legislative partisanship on the federal judiciary.

The Zika Response: A Case of Congressional Dysfunction and Polarization

by Jennifer Phillips, 2L Note Candidate

Stalemate.

Gridlock.

Government shutdown.

Words like this are starting to seem like the norm in describing Congress’s efforts to pass legislation. Congress’s slow response to the Zika virus is just one example of Congressional behavior that has engendered criticism. The Zika virus has sparked numerous travel advisories, has infected thousands, and has been declared a public health emergency by the World Health Organization – yet Congress took 233 days took to secure funding to combat the virus.

J16_4140Why the delay? Controversial measures added to the legislation by Republicans, a filibuster from the Democrats, and a seven-week summer break certainly contributed. And each party blamed the other for the delay.

Congress struggled to reach agreement on a 2017 federal budget, partly due to its squabbles over the Zika funding measures. The possibility of a federal government shutdown loomed as Congress worked to pass budgetary measures just days before the October 1 deadline. On September 28, 2016, Congress passed a continuing resolution that lasted until December 9, 2017, extending the deadline to agree on a full 2017 budget by a mere two months. On the night of December 9, the Congress passed another continuing resolution and set a new deadline of April 28, 2017.

Issues like Congress’s budgetary stalemates and struggles to pass vital legislation may be effects of today’s increasingly polarized political climate, as Professor Nolan McCarty asserts in his article published in Issue 1 of Volume 50 of the Indiana Law Review. Nolan McCarty, Polarization, Congressional Dysfunction, and Constitutional Change, 50 Ind. L. Rev. 223 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p223.pdf).

McCarty illustrates how Congress has become increasingly polarized since as early as the late 1970’s and suggests that the increase in polarization has contributed to Congressional dysfunction. Such dysfunction can be seen through Congress’s low legislative output, poor budgetary performance, and delay in affirming executive appointees. Political polarization, McCarty notes, is also related to the increased use of legislation-impeding mechanisms like filibusters and refusals to compromise.

Many people have proposed reforms to counter polarization, but such reforms have been met with little success. Suggesting that polarization is here to stay for now, McCarty explores the impact it has on the functioning of the legislative, executive, and judicial branches as a whole. At first glance, it seems like dysfunction of the legislative branch would lead to greater power for the other branches. Wouldn’t a Congress crippled by polarization lend more strength to the President and the courts? After all, a weak Congress means that Congress has less capacity to override Presidential vetoes or to counter Supreme Court interpretations of laws. On the other hand, polarization has affected the executive and judicial branches, too, and, according to McCarty, such polarization diminishes the power of the federal government overall.

McCarty’s article will enhance your perspective on the Congressional environment we see today and will give you an appreciation for the factors that have led up to its current state. As April 28, 2017 draws closer and the buzzword “government shutdown” again peppers the news, maybe we can both stop to think a little more deeply about the questions McCarty has invoked.

Indiana Religious Controversies Analyzed by Former Indiana Supreme Court Justice

by Tess Anglin, 2L Note Candidate

Michael DeBoer’s article Justice Brent E. Dickson, State Constitutional Interpretation, and the Religion Provisions of the Indiana Constitution, tracks Justice Dickson’s contribution to the development of Indiana constitutional law through analyzing three cases surrounding the interpretation of the religious provisions of the Indiana Constitution. With respect to each case, DeBoer notes Justice Dickson’s approach to analyzing questions of religion within the framework of the Indiana Constitution. From observing records of debates from the 1850-1851 Constitutional Convention, to reviewing historical surveys and comparing other state constitutions, Justice Dickson paid due diligence to understanding the intent of the framers of the Indiana Constitution on issues of religion. Michael J. DeBoer, Justice Brent E. Dickson, State Constitutional Interpretation, and the Religion Provisions of the Indiana Constitution, 50 Ind. L. Rev. 75 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p75.pdf).AnglinProfessionalPic

Justice Dickson retired from the Indiana Supreme Court in April of 2016, ending his tenure as the second-longest-serving Indiana Supreme Court justice. Chief Justice Loretta Rush succeeded Justice Dickson. Indiana Supreme Court Justice Brent Dickson Retiring in April, INDYSTAR (Jan. 11, 2016, 12:55 PM), http://www.indystar.com/story/news/politics/2016/01/11/indiana-supreme-court-justice-brent-dickson-retiring-april/78633916/ [https://perma.cc/83T2-5PVF].

In recent years, Indiana made national news for its adaption of a bill regarding religious freedom. Following the United States Supreme Court case Burwell v. Hobby Lobby, which held closely held corporations, as well as individuals, can assert religious rights, Indiana enacted the Religious Freedom Restoration Act (RFRA). RFRA creates an “exemption from general legal requirements for religious objectors unless the government can carry an especially heavy burden to show that the objection should be required to comply with the law.” RFRA caused a significant amount of controversy in Indiana, especially among the LGBTQ community due to the fear that businesses would abuse the exemption to discriminate LGBTQ consumers. Howard M. Friedman, 10 Things You Need to Know to Really Understand RFRA in Indiana and Arkansas, The Washington Post (Apr. 1, 2016), https://www.washingtonpost.com/news/acts-of-faith/wp/2015/04/01/10-things-you-need-to-know-to-really-understand-rfra-in-indiana-and-arkansas/ [https://perma.cc/467L-EY5M].

In February of 2016, an Indianapolis mother, Khin Par Thaing, received felony charges for beating her 7-year-old son with a coat hanger. Thaing initially claimed a religious exemption for the abuse under RFRA, arguing the beating was a form of discipline as prescribed by the Bible. Greg Bowes, Thaing’s lawyer, articulated in a filed memorandum that under RFRA, Thaing had “the right to discipline her children in accordance with her beliefs, and that the state should not interfere with her fundamental right to raise her children as she deems appropriate.” Vic Ryckaert, Son had 36 Bruises. Mom Quoted the Bible as Defense., INDYSTAR (Aug. 31, 2016, 6:58 AM), http://www.indystar.com/story/news/crime/2016/08/31/son-had-36-bruises-mom-quoted-bible-defense/88998568/ [https://perma.cc/C8PN-VZKP]. Ultimately, Thaing pled guilty to battery, and in exchange the prosecutors agreed to dismiss the neglect charge. Indianapolis Woman Who Cited RFRA and the Bible as Defense for Beating Son Pleads Guilty, FOX59 (Oct. 28, 2016, 11:26 AM), http://fox59.com/2016/10/28/indianapolis-woman-who-cited-rfra-and-the-bible-as-defense-for-beating-son-pleads-guilty/ [https://perma.cc/AU3H-9CTL].

With Justice Dickson retired from the bench, it will be interesting to see how the current Indiana Supreme Court will analyze both the scope of RFRA and the Indiana Constitution in cases where a religious defense is asserted to felony charges of battery and neglect. If the current court follows the groundwork of constitutional analysis of religion Justice Dickson followed, the court likely would begin looking to the Act itself as a primary resource. Next, the court would look to sources and documents that contributed to the Act, evaluate other relevant primary sources to indicate the historical context of the Act, and look to secondary sources.

Since RFRA’s enactment, the Act has primarily been used to excuse individuals from actions that would otherwise be criminalized, such as smoking marijuana and tax evasion. Thus far, the religious exemption to crimes created by RFRA has not prevailed. Josh Sanburn, How Indiana’s Religious-Freedom Law Is Being Used to Defend Child Abuse and Other Crimes, TIME (Sept. 8, 2016), http://time.com/4481073/indiana-rfra-law-child-abuse/ [https://perma.cc/3UM7-6LJD]. To read more about this issue, check out Michael J. DeBoer’s article in the Indiana Law Review.

Introducing the Presidents of the United States, Donald Trump AND Hillary Clinton

by Tyler J. Haston, 2L Note Candidate

Donald Trump or Hillary Clinton? While some voters were robust supporters of one of these candidates, the common response from several people in this country during the last election was, “Neither!” While roughly half of the country supported Donald Trump j16_4119and felt that Hillary Clinton would trample on their rights, the other half supported Clinton and believed Trump would ignore their needs entirely. Both sides feared that the other would fail to represent them at all. I firmly believe that both are correct. Political polarization has become so concrete in our country that the president essentially does only represent “their side” and their supporters, leaving roughly half the nation with nothing to do but attack the president, their political party, and nearly every single decision they make during their term. This creates a never-ending cycle of political warfare and American divide. To fix this problem, we should not have been asking the question of Donald Trump or Hillary Clinton during the last presidential election. Rather, we should have welcomed the concept of introducing the “Presidents of the United States, Donald Trump AND Hillary Clinton.”

A bipartisan executive branch would make tremendous strides in reducing most of the political polarization that has entrenched itself in our nation. See generally Political Polarization in the American Public, Pew Research Center (June 12, 2014), http://www.people-press.org/2014/06/12/political-polarization-in-the-american-public/ [https://perma.cc/H8HS-Z6E2]. A two-party presidency would allow for nearly all Americans to have their voices heard and have their interests represented in a fair manner. When the founding fathers decided on a one person executive—a single president—it was the correct decision. At that time in history, the nation was more united, population was minuscule compared to today, and party polarization was not as extreme. The president could represent the entire nation—or at least a vast majority. However, several developments have occurred in the past two centuries. While leaders in this area identify several issues, two major developments have been identified as driving the need for change. See generally David Orentlicher, Two Presidents are Better Than One: The Case for a Bipartisan Executive Branch (2013).

First, the president no longer views the entire country as its constituency. Rather, the president is forced to focus on those who already support him or her and take actions to keep that half of constituents satisfied. Those who oppose the president are likely to oppose him or her no matter what, so why bother aiming to please that half of constituents? In a bipartisan executive system, all constituents could focus solely on the quality of the candidate for their party. If individuals know that they will be represented regardless, they could spend more time focusing on what the candidates actually believe and represent and less time on simply condemning the opposing party. Ideally, this would lead to the selection of the best two individuals to represent nearly all constituents in the country, not just the half that prevail. Imagine if the consideration was, “Who is the absolute best person in this nation to represent my interests and beliefs?” rather than, “Who can raise enough money to beat the other party in the election?”

The second major issue that calls for a bipartisan executive branch is that the president has assumed far greater policy making power than the founding fathers ever envisioned. To further the issue expressed above, this power influx allows the president to make decisions that nearly half the country will always disagree with without having any say in the matter. A two-party presidency could alleviate much of that dissatisfaction. If the two presidents must agree on a decision before it is made, such as an executive order or even a declaration of war, constituents could feel that their opinions were represented in making that decision, regardless of the outcome.

On November 8, 2016, the most powerful nation in the world decided it would be exclusively be run by Donald Trump. This is what political polarization has led us to. Perhaps it is time to explore the concept of a bipartisan executive branch. To read more about this issue, check out David Orentlicher’s article in this issue of the Indiana Law Review. David Orentlicher, Political Dysfunction and the Election of Donald Trump: Problems of the U.S. Constitution’s Presidency, 50 Ind. L. Rev. 247 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p247.pdf).

Congress’ Role in the Rules-of-the-Road of Representative Democracy

by Yaniv Shmukler, 2L Note Candidate

In his recently published article, Can Congress Play a Role in Remedying Dysfunctional Political Partisanship?, Professor Mark Rosen discusses how voting rights, gerrymandering, and political campaigns lead to increased polarization in today’s political climate. He notes that most rules-of-the-road are state law, although Congress has the power to displace them. The article reiterates the main points from Rosen’s 2012 article, which suggested substantive and institutional ways to improve the rules-of-the road. Mark D. Rosen, The Structural Constitutional Principle of Republican Legitimacy, 54 Wm. & Mary L. Rev. 371 (2012).

The newly published article responds to critiques that say Rosen’s proposal is self-defeating j16_4169-1by invoking the constitutional origin of the rules-of-the-road and Congress’ ability to affect them. He connects these two ideas by arguing that an increased perception of the rules-of-the-road as constitutional will lead to an increased role by Congress.

Given the hostile political climate that has arisen since the 2016 presidential election, Rosen’s recommendations are more relevant now than ever. Political polarization has reached new heights, and even educators are struggling with this new reality. Vikki Ortiz Healy, Educators Struggle to Teach Election Lessons amid Charged Presidential Race, Chicago Tribune (Sept. 24, 2016, 5:35 AM), http://www.chicagotribune.com/news/ct-presidential-election-education-met-20160923-story.html [https://perma.cc/2D5R-BUKD]. This partisan divide prevents important legislation from being passed, leading to disillusionment within the populace. Partisan bias in redistricting, known as gerrymandering, persists despite efforts to eliminate the bias through independent commissions. Voting rights issues continue to be debated, as some states pass controversial voter ID laws and prevent felons from voting. In some cases, courts have struck down such laws, while in other cases, voting bans have been upheld. Congress can eliminate the uncertainty created by these rulings by playing a larger role in voting rights legislation.

Rosen argues that Congress should play a larger role in solving these problems. By bringing the constitutional origins of the rules-of-the-road to light, Rosen is hoping to give Congress a better understanding of its power to create change without waiting for the judiciary to decide on certain issues. With his new article, Rosen provides a much-needed perspective that could reduce partisan gridlock and lead to solutions to difficult problems. To read more about this topic check out Rosen’s article in this issue of the Indiana Law Review. Mark D. Rosen, Can Congress Play a Role in Remedying Dysfunctional Political Partisanship?, 50 Ind. L. Rev. 265 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p265.pdf).

Civility and Efficiency Can Still Co-Exist

by Kayleigh Long, 2L Note Candidate

In a political climate of gridlock where the Senate refused to act on President Obama’s nomination of Merrick Garland to the United States Supreme Court, Justice Ruth Bader j16_4156Ginsburg reminded the nation of the art on how to disagree vehemently within the bounds of civility after the untimely passing of Justice Antonin Scalia. As several commentators remarked, “[t]hough the liberal Ginsburg and conservative Scalia frequently sparred over judicial matters, they shared a deep friendship and respect for each other’s intellect and wit.” Fang, Marina, Ruth Bader Ginsburg Remembers Antonin Scalia, Her Dear Friend and Sparring Partner, THE HUFFINGTON POST (Feb. 14, 2016, 2:14 PM), http://www.huffingtonpost.com/entry/scalia-ginsburg-friendship_us_56bfb717e4b0b40245c6f436 [https://perma.cc/M8B5-TCNZ]. This past April, the Indiana Supreme Court saw its own departure of the role model of civility with the retirement of Justice Brent E. Dickson.

As the authors of In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law point out, Dickson’s time spent on the Indiana Supreme Court helped spur reforms to Indiana criminal law, and he wrote almost nine hundred opinions. In the wake of Dickson’s retirement, testimony of his character repeated itself throughout the legal community. Indiana Justice Steven David characterized Dickson as “Captain Civility,” and Indiana Justice Robert D. Rucker described him as being “cool, collected, rock solid and a steady hand.” Nelson, Jennifer, Dickson’s Tenure on Supreme Court Celebrated, The Indiana Lawyer (Apr. 29, 2016), http://www.theindianalawyer.com/dicksons-tenure-on-supreme-court-celebrated/PARAMS/article/40218 [https://perma.cc/XJ28-WP33]. In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law outlines specific instances where Dickson responded with civility in both his majority and dissenting opinions throughout various areas of criminal law. Examples the authors point to include formulating helpful jury instructions on the meaning of reasonable doubt and the jury’s role in determining law and fact.

As the American public faced a contentious presidential election and a stalled Congress with just an eleven percent approval rating, the Hoosier state just experienced a period of judicial reform within criminal law without sacrificing civil, working relationships on the Indiana Supreme Court bench for the past three decades. Shabad, Rebecca, Congress’ Approval Rating Drops to 11 Percent, CBS News (Nov. 11, 2015, 3:45 PM), http://www.cbsnews.com/news/poll-congress-approval-rating-drops-to-11-percent/ [http://perma.cc/3KGY-QGQR]. When it appears that those in the three branches of government cannot seem to get along or accomplish meaningful change, Justice Dickson’s tenure reminds us civility and efficiency are still possible.

To read more about Justice Dickson’s contributions to Indiana criminal law check out In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law in this issue of the Indiana Law Review. Daylon L. Welliver & Joel M. Schumm, In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law, 50 Ind. L. Rev. 15 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p15.pdf).

Congratulations to the Vol. 51 Editorial Board!

The Indiana Law Review is pleased to announce the following members have been selected for its Volume 51 editorial board. We look forward to their leadership and contributions to legal scholarship throughout the 2017-18 academic year. Congratulations!

Ashley Hart, Editor in Chief
Zachary Mahone, Executive Managing Editor
James Strickland, Executive Notes Editor
Michael Heavilon, Executive Articles Editor
Timothy Walters, Executive Articles Editor
Kayleigh Long, Senior Executive Editor
Bradley Boswell, Symposium Editor
Joel Benson, Executive Technology Editor

Note Development Editors:
Tess Anglin
Katherine Forbes
Tyler Haston
Matthew Koressel
Julie Tempest

Articles Editor:
Kelsey Dilday
Joseph Gilham
Allan Griffey
Patrick McCarney
Nate Moyer
Yaniv Shmukler

 

The ABA and Law School Innovation

by Daniel McGregor, 2L Note Candidate

Enrollment at the University of North Texas at Dallas College of Law is up despite an August proclamation against granting the school accreditation by an ABA advisory group. Hacker, Holly K., Students Flock to UNT-Dallas Law School Despite Questions About its Future, DALLASNEWS (Aug. 31, 2016), http://www.dallasnews.com/news/education/2016/08/31/students-flock-unt-dallas-law-school-despite-questions-future [https://perma.cc/Z2T4-3YTB].

This underscores a point recently made by Indiana’s Former Chief Justice, Justice Randall T. Shepard (pictured below), who notes that a shift in the way financial aid is distributed can disproportionately impact those applicants who come from homes with less economic advantages. When a school, like the University of North Texas at Dallas College of Law, tries to provide a program that addresses this issue, the ABA should at least allow them a little leeway and time to see if the program can work.

shepardThe underlying problem, as noted by Former Chief Justice Randall T. Shepard, is the shift from need-based financial aid to focusing more on the merit of LSAT scores and GPAs. The problem with this shift is that the affluent tend to have higher scores and thus receive the bulk of the financial aid. The UNT-Dallas College of Law was opened as an affordable option for individuals who may not have the best measurable scores that would allow them to receive tuition breaks at most universities. This may provide opportunities for a more diverse class without forcing individuals to rack up extreme amounts of debt. According to Deborah Merritt, the school considers a multitude of factors in addition to GPA and LSAT scores in determining who is likely to succeed in law school. Merritt, Deborah Jones, Should Law School in Texas Be Rewarded or Punished for Unique Approach? (Perspective), Bloomberg L. (Sept. 9, 2016), https://bol.bna.com/should-law-school-in-texas-be-rewarded-or-punished-for-unique-approach-perspective/ [https://perma.cc/LAA6-BZSW]. Providing a less expensive law degree may also allow these individuals to pursue work that does not pay as well after graduation.

Former Chief Justice Randall T. Shepard notes that “crisis prompts innovation,” using Arizona State opening its own non-profit law firm as an example. The University of North Texas at Dallas College of Law can also be viewed as a program trying to innovate in the face of crisis. As such, it seems like the school should be provided a reasonable amount of time to show whether the program will work. The uptick in admissions, despite the doubt about accreditation, shows that there is a demand for what the institution is providing. While this program may not be for everyone, it cannot be deemed ineffective until graduating students are allowed to sit for the Texas Bar. If UNT-Dallas College of Law students pass at rates comparable to students at other accredited law schools in Texas, that would be evidence UNT-Dallas College of Law’s model is working. If UNT-Dallas students fail to achieve this measure, then at least we know this innovative school was given an opportunity to prove itself.

To read more about this issue, check out Former Chief Justice Shepard’s article published in the Indiana Law Review. Shepard, Randall T., The Problem of Law School Discounting – How Do We Sustain Equal Opportunity in the Profession?, 50 Ind. L. Rev. 1 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p1.pdf). Former Chief Justice Randall T. Shepard’s article is also featured as a cover story in the latest issue of the The Bar Examiner. Shepard, Randall T., The Problem of Law School Discounting – How Do We Sustain Equal Opportunity in the Profession?, 85 B. Examiner 6 (2016) (available at http://www.ncbex.org/pdfviewer/?file=%2Fassets%2Fmedia_files%2FBarExaminer%2Fissue%2FBE-850416-ABRIDGED2.pdf).

Indiana’s New Commercial Courts: Waiting for Work

by Allison Skimehorn, 2L Note Candidate

j16_4152Business courts may have gotten their start over 220 years ago in United States, but they are brand new to Indiana. The Indiana’s Commercial Court Pilot Project began just this June, with jurisdictions that span over the entire state. Tyler Moorhead’s article poignantly lists some of the great advantages these courts can provide, such as efficiency, common law predictability and their progressive use of technology. However, since the June 1st start date, it appears that cases on commercial court dockets have been slow to take off.  For example, the Lake, Floyd and Vanderburgh branches have not had a single filing as of September 28, 2016. Dave Stafford, Commercial court cases increase; dockets now accessible online, The Indiana Lawyer (September 28, 2016), http://www.theindianalawyer.com/commercial-court-cases-increase-dockets-now-accessible-online/PARAMS/article/41568 [https://perma.cc/VR7S-GKWF].  This absence maybe due to the fact that the court will only take cases filed after June 1st of this year and, of course, that the court is still very new.  As of now, the commercial court does remain voluntary, allowing a party to opt out of it within 30 days. However, this may change if the three year pilot is renewed indefinitely. This would eventually help those slower counties get a hold of more cases for their docket.

Another interesting part of Moorhead’s article discusses the court’s embrace of new technology. From e-discovery to litigant video conferencing, it is apparent that commercial courts are ready to take the dive into the modern era. Utilizing technology, while maintaining judicial integrity, helps lend a hand to shortening complex contract and tort claims dramatically. The article references a study that found that complex contract claims can be handled at an average of 1,138 days more quickly than their civil court counterparts.  The slow trickle of cases into the Indiana Commercial Court docket could possibly elicit a much faster turnaround time than similar complex cases in an already behind and strapped civil court system.

With the clear benefit of efficiency and technological flexibility, it’s quite a surprise that the Commercial Court Pilot Project has not been completely inundated with work. However, the project is still very new to Indiana, and will likely grow in popularity once these benefits are more clearly realized.  This specialized court has been around for 220 years, and spread to twenty-seven states due to its effectiveness, but sometimes things just take time. To learn more about this topic, check out Tyler Moorhead’s note in this issue of the Indiana Law Review. Moorhead, Tyler, Business Courts: Their Advantages, Implementation Strategies, and Indiana’s Pursuit of Its Own, 50 Ind. L. Rev. 397 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p397.pdf).