Law School

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).

Justice Dickson’s Lasting Influence

by Kelsey Dilday, 2L Note Candidate

Justice Brent E. Dickson of the Indiana Supreme Court retired on April 29, 2016, after a 30-year term. Justice Dickson is the second-longest-service Indiana Supreme Court Justice after Justice Isaac Blackford who served for more than thirty-five years in the 1800s. 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/B4E5-3GQ4].  At his retirement, Justice Dickson was praised for his civility, wisdom, graceimg_5545, and wit during his time on the bench. Governor Mike Pence presented Justice Dickson with the Sagamore of the Wabash award for his longstanding service for Indiana. Justice Dickson hailed for his civility, grace at retirement, WISHTV.COM (April 29, 2016, 3:52 PM), http://wishtv.com/2016/04/29/justice-dickson-hailed-for-his-civility-grace-at-retirement/ [https://perma.cc/S7NF-H5FD]. This award is named after the Native American term “sagamore,” which referred to a great man within a tribe who would look to the chief for guidance. The award is a high honor, always bestowed by Indiana’s Governor to individuals who have “contributed greatly to our Hoosier heritage.” Sagamore of the Wabash Award, IN.gov, http://www.in.gov/portal/files/Sagamore.pdf [https://perma.cc/UV32-ZDPA] (last visited Jan. 1, 2017). Chief Justice Loretta Rush also thanked Justice Dickson for his help in “institutionaliz[ing] civility” on the Indiana Supreme Court. Callahan, Rick, Retiring Indiana Justice Dickson hailed for civility, South Bend TRIBUNE (April 30, 2016), http://www.southbendtribune.com/news/publicsafety/retiring-indiana-justice-dickson-hailed-for-civility/article_c2752c5f-90a7-5d81-9e1e-f7c8984cf3ea.html [https://perma.cc/6LZG-YE5Y].

However, Justice Dickson’s civility is not his only tribute to the Indiana Supreme Court, and he left behind thirty years of long standing court precedent. Throughout his thirty year term, he was an important influence on Indiana constitutional law. Justice Dickson was integral in the formation of the modern standards for application of the Indiana Constitution’s Equal Privileges and Immunities Clause. His opinions on wrongful death tort cases helped create a rulebook for practicing attorneys. Oddi, Marcia, Ind. Courts – “A Tribute to Justice Brent Dickson’s Contribution to Indiana Constitutional Law, The Indiana Law Blog (Mar. 20, 2016, 6:22 PM), http://indianalawblog.com/archives/2016/03/ind_courts_a_tr_2.html [https://perma.cc/H6XC-VBPZ]. Also notable is his influence in the reviving the Public Standing Doctrine, a doctrine which allows plaintiffs to sue to enforce public duties even if the plaintiff lacks a stake in the outcome of a case that differs from the stake held by the general public. Additionally, Dickson’s opinions are known to show a clear preference for jury decisions of factual disputes. As a strict constructionist, Justice Dickson, throughout his thirty years of service, remained dedicated to the Indiana Constitution and its framers’ intent, while setting aside his personal and subjective perspectives. IUPUI Law Professionals Reflect On Former Justice’s Impact, WBAA (Mar. 30, 2016), http://wbaa.org/post/iupui-law-professionals-reflect-former-chief-justices-impact#stream/0 [https://perma.cc/688F-9PHR].

While Justice Dickson’s thirty-year tenure for the Indiana Supreme Court is now over, it is clear that his ideas while on the Court will leave a lasting impression on Indiana’s legal landscape. To read more about Justice Dickson’s influence on Indiana constitutional law check out Jon Laramore’s article in this issue of the Indiana Law Review. Laramore, Jon, Justice Dickson’s Thirty-Year Influence on Indiana Constitutional Law, 50 Ind. L. Rev. 49 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p49.pdf).

 

Congratulations to the Vol. 49 Note Candidates!

The Indiana Law Review is pleased to announce that the following students have been selected as Note Candidates for Volume 49. We look forward to their contributions to legal scholarship over the coming school year. Congratulations!

Melody Bledsoe

Samuel Blink

Chris Bloomer

Alexander Carlisle

Eric Coleman

Kristina Coleman

Rebecca Critser

John DeRoss Jr.

Amy Dunn

Justine Farris

Christina Fisher

Kristina Frey

Scott Frissell

Tabatha Halleck

Ryan Heeb

Betsy Huffman

Benjamin Jaqua

Justin Jones

Tyler Jones

Robert Miller

Kyle Montrose

Tyler Moorhead

Kasey Polk

Caroline Ryker

Alexander Swider

Ariana Tanoos

Megan Thobe

Congratulations to the Vol. 49 Editorial Board!

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:
Evan Carr
J. Michael Deweese
Drew Kirages
Johanna O’Connell
Jason Rauch
Emily Schmale

Articles Editors:
Kaitlyn Collyer
Jordan Lorenzo
Brad Murphy
Ellen Pactor
Christi Rever

Congratulations to Burnell Grimes, Winner of the First Indiana Law Review Blog Writing Competition!

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.

A Dean’s Reflection: IU McKinney’s Education Model

Andrew Klein
Dean and Paul E. Beam Professor of Law
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 227H
530 W. New York Street
Indianapolis, IN 46202-3225
Faculty Profile Webpage
Twitter: @anrklein


Thanks to the editors of the Indiana Law Review for inviting my comments. I applaud your efforts to expand the journal’s scope and reach.

This post marks a personal anniversary of sorts. I have been dean of our school for a year, and it would be impossible to describe the experience in a short essay. But as a renowned philosopher once said, “We do not learn from experience . . . we learn from reflecting on experience.” [1]. So indulge me some brief reflections.  (more…)