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).

Sovereign Immunity Across Borders: How the United States Could Learn from Indiana Following the Justice Against Sponsors of Terrorism Act

by Michael Heavilon, 2L Note Candidate

Earlier this year marked the fifth anniversary of the disastrous stage collapse during the Sugarland concert at the Indiana State Fair. Evan West, The Collapse, Indianapolis Monthly (August 1, 2012), http://www.indianapolismonthly.com/longform/the-collapse/ [http://permc.cc/499S-AXP9]. While those victims still recount the horrific experience, Indiana learned an important lesson in the limits of sovereign immunity in the ensuing litigation. Although Indiana passed the Indiana Tort Claims Act (“ITCA”), an Indiana Court of Appeals rheavilonuled that this did not apply to purposefully contracted indemnification clauses See In re Ind. State Fair Litig., 28 N.E. 3d 333 (Ind. Ct. App. 2015), vacated, 49 N.E.3d 545 (Ind. 2016).

While some argued that this undermined the purpose of the ITCA by allowing the State to be subject to liability (especially in a dissent by Chief Judge Vaidik), Indiana Law Review Note Writer Tyler Jones argued that this may not be the end of the world in his Note Paradise Lost: Contracting Away Immunity under the Indiana Tort Claims Act. Although exposing Indiana to more potential claims, Jones writes that all is not lost if the State still has some form of immunity.

Earlier this year also marked another important anniversary of a United States tragedy. Shortly after the fifteenth anniversary of the September 11th attacks, the issue of sovereign immunity returns in the form of federal legislation.

Overriding a veto by President Barack Obama, the House of Representatives has voted to pass the Justice Against Sponsors of Terrorism Act (JASTA), allowing families of the victims of the 9/11 attacks to bring claims against Saudi Arabia. Scott Horsley & Ailsa Chang, Congress Overrides Obama’s Veto On Sept. 11 Lawsuit Bill, NPR (September 28, 2016), http://www.npr.org/2016/09/28/495709481/sept-11-lawsuits-vote-today-could-be-first-reversal-of-an-obama-veto [https://perma.cc/S2DH-89WU]. Critics of the bill claim that this could be a disaster, opening the opportunity for other countries to pass similar laws and expose the United States to liability from people bringing suit around the world in their home court. See, Jim Ash, Legal Expert: Overriding ‘Sovereign Immunity’ Bad Idea, WFSU (September 29, 2016), http://news.wfsu.org/post/legal-expert-overriding-sovereign-immunity-bad-idea [https://perma.cc/8DE5-DMV4]. This could require the United States to expend resources defending itself from those bringing suit around the world.

With some states, including Indiana, now exposed to more liability claims, the United States could examine how limiting immunity from liability has affected the State’s activities and what resources it has expended as a result. While the United States would not have the control over what types of claims others could bring against it, certain states limitation of sovereign immunity could provide an important lesson to the United States as it proceeds with potential claims for various tort claims.

An important issue addressed by Jones is the fact Indiana still retains some form of immunity through the ITCA. What could happen to the United States if all immunity were lost? Tyler Jones note is available in this issue of the Indiana Law Review. Jones, Tyler, Paradise Lost: Contracting Away Immunity Under the Indiana Tort Claims Act, 50 Ind. L. Rev. 369 (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p369.pdf)

Something Must Be Done: Finding a Solution to America’s Tumultuous and Complex Relationship with the Police during Traffic Stops

by Zachary J. Mahone, 2L Note Candidate

This past July, the haunting cell phone footage of Philando Castile’s death sent shockwaves through the already shaky ground of police and public relations. After being pulled over for a broken taillight, Castile was shot and killed by a Minnesota police officer over a miprofessional-headshot-1sunderstanding involving a legally registered hand gun. Eliott C. McLaughlin, Woman Streams Aftermath of Fatal Officer-Involved Shooting, Cnn (July 8, 2016, 4:57 PM), http://www.cnn.com/2016/07/07/us/falcon-heights-shooting-minnesota/ [https://perma.cc/CD6Z-RU8Z]. Castile’s death, like many of the unfortunate police shootings before it, ignited a conversation on how law enforcement officers should behave during traffic stops.

Unfortunately, this dialogue to arrive at a solution has had an inconsistent focus. While the public has demanded body cameras and police accountability, some government agencies have turned to tactics on the other side of the spectrum directed at educating citizens on how to behave when pulled over. Both of these solutions have questionable effectiveness, limited scope, and ultimately fall short in being a definitive resolution.

Although many view body cameras as the key to healing police and public relations, the science on why or how body cameras work is uncertain. In studies done across the nation, the success of body cameras has varied mysteriously. In some areas, body cameras work amazingly well, and in others they seemingly increase the use of force. Barak Ariel, Do Police Body Cameras Really Work?, IEEE Spectrum (May 4, 2016, 7:00 PM), http://spectrum.ieee.org/consumer-electronics/portable-devices/do-police-body-cameras-really-work [https://perma.cc/HJA7-HM6N]. Further, body cameras for all their potential benefit will never be able to depict a situation fully. In a study highlighted by the New York Times, body camera footage was found to be subject to “deceptive intensity” in which body camera footage tends to make events appear more violent than they actually are. Timothy Williams et al., Police Body Cameras: What Do You See?, The New York Times (Apr. 1, 2016), http://www.nytimes.com/interactive/2016/04/01/us/police-bodycam-video.html?_r=0 [https://perma.cc/KZZ3-GH5S]. Body cameras, although a helpful tool to deter police aggression, are limited and can ironically deceive. Thus, body cameras should not be viewed as a final solution.

A solution on the other side of police accountability and body cameras is public education on proper behavior during traffic stops. For example, the FBI in Springfield, Illinois is working on an educational video directed at teaching high school students how to behave during traffic stops. FBI Video to Show Illinois Teens How to Act in Traffic Stops with Police, Chicago Tribune (Oct. 1, 2016, 4:31 PM), http://www.chicagotribune.com/news/local/breaking/ct-fbi-video-illinois-teens-traffic-stops-20161001-story.html [https://perma.cc/NTW5-Z3U2]. Along with showing the video, schools across Illinois will be expected to teach students how to handle being stopped by a police officer as a part of the driver’s education curriculum. This approach may be viewed as a step in the right direction but it is only focused on one side of the police and public relations formula. An educational video would have done nothing to help Philando Castile. Both body cameras and educational videos fail in that they are restricted and can only do so much. Instead, what is needed is a complex and dynamic solution to match the complex and dynamic problem.

In his Note, Policing the Police: Re-examining the Constitutional Implications of Traffic Stops, Benjamin Jaqua proposes police regulation through new department policies and state legislation. Jaqua finds that solutions to fix public and police relations must consider three competing considerations: the police officer’s interest in clarity, society’s interest in effective law enforcement, and the individual’s interest in privacy and dignity. Uniquely, Jacqua’s Note is influenced by his personal experience as an officer with the Memphis Police Department. Jaqua hopes to provide guidance to limit police shootings and to heal the rift that exists between the public and police officers. Philando Castile’s death is a call for a practical solution that is aimed at the complex relationship between the police and the public. Benjamin Jaqua’s Note addresses this complexity and provides a workable solution. Jaqua, Benjamin, Policing the Police: Re-examining the Constitutional Implications of Traffic Stops, 50 Ind. L. Rev. 345 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p345.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).

 

A Government Divided Against Itself

by Katherine M. Forbes, 2L Note Candidate
https://www.linkedin.com/in/kathy-forbes-050a788

forbessmall

Among the many important tasks the new Commander in Chief will undertake is the appointment of a new Supreme Court Justice. Where We Stand on Stalled Supreme Court Nominee Merrick Garland, ABC News (October 7, 2016), http://abcnews.go.com/Politics/stand-stalled-supreme-court-nominee-merrick-garland/story?id=42648073 [https://perma.cc/Z9X8-U38C]. Many voters considered this an important element in choosing whom to vote for, with good reason.

Despite being short one justice, the Justices returned to work in October. A short-handed Supreme Court begins a new term, The Economist (October 7, 2016), http://www.economist.com/blogs/democracyinamerica/2016/10/slow-justice [https://perma.cc/S4Q7-R447]. However, because of the one empty seat left by the death of Antonin Scalia, they face the prospect of 4-4 splits, meaning the ruling of the lower Court of Appeals is maintained. In such instances, “[i]t’s as if the Supreme Court never took the case at all.” Supreme Court gamesmanship unjust, USA Today (October 7, 2016), http://www.news-press.com/story/opinion/2016/10/07/supreme-court-gamesmanship-unjust/91722606/ [https://perma.cc/JP6S-8P5Y]. Such toothless results could matter since this new docket concerns a number of cases dealing with race—an issue Americans are still struggling with.

Although tension always existed between the political parties, the standoff between President Obama and the Senate over the current Supreme Court nominee, Merrick Garland, has weakened the power of the Supreme Court (for a season) and perhaps harmed the American public as well. Sun-Times Editorial Board, Editorial: The harm of short-handed Supreme Court, Chicago Sun Times (October 6, 2016), http://chicago.suntimes.com/opinion/editorial-the-harm-of-short-handed-supreme-court/ [https://perma.cc/R46B-XWVV]. Rather than look to Garland’s merits and examine how much he aligns with their approach to Constitutional interpretation, Senate Republicans have taken a hard stance against him simply for being President Obama’s nominee.

This shallow approach to such an important institutional task is a crown of shame for the current Senate. Perhaps the American conscious can take comfort knowing this is not the norm. Rather, in the past, the nine seats of the most stalwart branch of government use to be confirmed by reasonable men and women who looked beyond their party to confirm individuals they trusted would reason with similar Constitutional views. This historical approach to Supreme Court appointments is addressed in Mark A. Graber’s article. Graber, Mark A., Judicial Supremacy and the Structure of Partisan Conflict, 50 Ind. L. Rev. 141 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p141.pdf).

His article gives the academically minded a deeper understanding for why the Court’s present vacancy is significant. He helps us take a step back to see the history of the Supreme Court’s relationship with our dual-party system. He then ties the recent shift in bipartisanship to a weakening of vision and “supremacy” given to the Judiciary. Basically, he reminds us of a time when both parties looked to the broader scope and worked with the Supreme Court to make America’s government an admirable enterprise.

Congratulations to the Vol. 50 Note Candidates!

The Indiana Law Review is pleased to announce that the following students have been selected as Note Candidates for Volume 50.  We look forward to their contributions to legal scholarship over the coming school year. Congratulations!

Tess Anglin                                                     Zach Mahone

Joel Benson                                                     Ryan Mann

Bradley Boswell                                             Patrick McCarney

Janeia Brounson                                            Daniel McGregor

Kelsey Dilday                                                  Nathaniel Moyer

Katherine Forbes                                           Jennifer Phillips

Joseph Gilham                                                Jackson Schroeder

Allan Griffey                                                   Yaniv Shmukler

Ashley Hart                                                     Allison Skimehorn

Tyler Haston                                                   James Strickland

Michael Heavilon                                          Julie Tempest

Matthew Koressel                                          Tim Walters

Kayleigh Long

Congratulations to the Vol. 50 Note Candidates Selected for Publication!

The Indiana Law Review is pleased to announce the following note candidates have been selected for publication in Volume 50:

Kristina Coleman, Beyond Baidoo v. Blood-Dzraku: Service of Process Through Facebook And Other Social Media Platforms Through An Indiana Lens

John DeRoss Jr., Misclassification Of Employees As Independent Contractors In Indiana: A State Legislative Solution

Justine Farris, The Right Of Non-Citizens To Bear Arms: Understanding ‘The People’ Of The Second Amendment

*Tabatha Halleck, What Should A Showing Of Intent Or Purpose Require In A Case Of Corporate Liability For Child Slavery Under The Alien Tort Statute?

Benjamin Jacqua, Policing The Police: Reexamining The Constitutional Implications Of Traffic Stops

Tyler Jones, Paradise Lost: Contracting Away Immunity Under The Indiana Tort Claims Act

Kyle Montrose, Aim For The Best, Prepare For The Worst: Indiana’s Lack Of Municipal Bankruptcy

Tyler Moorhead, Business Courts: Their Advantages, Implementation Strategies, And Indiana’s Pursuit Of Its Own

Alexander Swider, Toeing The Line: The Delicate Balance Attorneys Must Maintain When Responding To Auditor Inquiry Request Letters

Ariana Tanoos, Shielding The Presumption of Innocence from Pretrial Media Coverage

Megan Thobe, A Call To Action: Fixing The Judicially-Murkied Waters Of 35 U.S.C. § 101

*winner of the Papke Prize, awarded annually for the best student note

Criminalization of HIV: Spread of the Viral Underclass

by Tyler J. Smith
J.D., 2015, Indiana University Robert H. McKinney School of Law

H-I-V. Arguably, no three letters in American society have generated more fear of a “viral underclass” [1] than those associated with the Human Immunodeficiency Virus (“HIV”). In many states, including Indiana, simply having HIV is a crime with potentially severe consequences. The criminalization of HIV is founded on a fear of something many people do not fully understand and the stigma of “HIV’s association with an ‘outlaw’ sexuality, anal intercourse, gay men, people of color, and people who use drugs.” [2] Indeed, convictions under these statutes rarely have anything to do with actual HIV transmission or risk of transmission. [3] Over thirty states currently have HIV specific criminal statutes “based on perceived exposure to HIV, rather than actual transmission of HIV to another.” [4] (more…)

Union-Based Bidding Restrictions: Unresolved Issues

by Charles B. Daugherty
Easter & Cavosie
10455 N. College Ave.
Indianapolis, IN 46280
(317) 574-0828
cdaugherty@easterandcavosie.com
http://www.easterandcavosie.com/charles-b-daugherty

For centuries, public entities have employed competitive bidding to form construction contracts for public projects. Public entities often prefer competitive sealed bidding because it promotes both the lowest and best price, and fair and open competition among all citizens. Indeed, the Indiana General Assembly enacted Indiana’s competitive bidding statute “to safeguard the public against fraud, favoritism, graft, extravagance, improvidence and corruption, and to insure honest competition for the best work or supplies at the lowest reasonable cost.” [1] That said, the competitive bidding system has faults. Owners sometimes use pre-bid arrangements and procedures to address perceived flaws in the competitive bidding process. Labor issues have been the subject of such pre-bid arrangements and procedures.

(more…)