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


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

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.


Congratulations to the Vol. 50 Editorial Board!

The Indiana Law Review is pleased to announce the following members have been selected for its editorial board of Volume 50. We look forward to their leadership and contributions to legal scholarship throughout the 2016-17 academic year. Congratulations!

Tabatha Halleck, Editor in Chief
Alexander Swider, Executive Managing Editor
Justine Farris, Executive Notes Editor
Christopher Bloomer, Executive Articles Editor
Amy Dunn, Executive Articles Editor
Caroline Ryker, Senior Executive Editor
Christina Fisher, Symposium Editor
Kasey Polk, Executive Technology Editor

Note Development Editors:
Alexander Carlisle
Rebecca Critser
John DeRoss, Jr.
Ryan Heeb
Benjamin Jaqua
Kyle Montrose

Articles Editors:
Samuel Blink
Kristina Coleman
Kristina Frey
Justin Jones
Tyler Jones
Ariana Tanoos

Associate Editors:
Melody Bledsoe
Eric Coleman
Scott Frissell
Elizabeth Huffman
Robert Miller
Tyler Moorhead
Megan Thobe

Badged Bullies Belittling the Brazen: A Look into How School Resource Officers Contribute to the School-to-Prison Pipeline

by Marcus Alan McGhee
2015 Fellow, Program on Law and State Government
J.D. Candidate, 2016, Indiana University Robert H. McKinney School of Law
M.P.A., 2012, Northern Kentucky University
B.A., cum laude, 2010, Northern Kentucky University

Starting a few decades ago, school districts across the nation began to adopt and strictly adhere to zero-tolerance policies related to student behavior. [1] As a result, hundreds—if not thousands—of youth were funneled into the criminal justice system. [2] This over-criminalized reaction has been exacerbated by the presence of the school resource officers (“SROs”) [3] in some jurisdictions. Minor infractions once left to the resourcefulness of teachers or principals are now under the purview of in-house police officers. [4] As a result, more students are receiving the end-of-school designation of felon instead of high school graduate. [5] Of course, not all instances result in a conviction. Nonetheless, simply being arrested is sufficient to create a lasting record in the criminal justice system. Furthermore, the arrests discussed in this Article are not the ones of gun wielding deviants, but instead are those resulting from behavior most would argue typify adolescence: things like back talk and disobedience. [6] Indeed, after reading some arrest reports one might assume that the reports were drafted for mock trials instead of genuine criminal hearings: a fourteen-year-old arrested for texting, [7] a thirteen-year-old arrested for passing gas, [8] and a six-year-old arrested for throwing a temper tantrum. [9]


Can Congress Play A Role in Remedying Dysfunctional Political Partisanship? – A Prolegomenon

by Mark D. Rosen
Professor of Law (Faculty Profile)
Chicago-Kent College of Law
565 W. Adams St., Room 751
Chicago, IL 60661

[Editor’s Note: Professor Rosen’s full analysis will be presented at this year’s Indiana Law Review Symposium, titled Partisan Conflict, Political Structure, and Culture, on Friday, November 6, 2015. Registration information is available here.]

A recent situs of deep partisan contestation – and a likely contributing cause of dysfunctional partisanship – are the rules of the road that operationalize our representative democracy in the States:  for example,  what conditions must be satisfied for voter eligibility, how votes are aggregated for purposes of selecting representatives, and how political campaigns are funded.  State law governs most rules of the road, though Congress has substantial authority to regulate instead.   Might there be a role for Congress here?

Perhaps.  Partisan rules of the road threaten the system of representative government the Constitution creates for the federal government and guarantees the States.  Congressional action to correct representative democracy’s problematic rules of the road accordingly falls within the domain of constitutional decisionmaking.  My talk then builds on a larger project of mine that argues there ought to be a special set of norms are applicable when Congress engages in constitutional decisionmaking.  Without a clear understanding of such norms, any suggestion that Congress can engage in responsible constitutional decisionmaking can be criticized as unrealistically naïve or utopian.  More constructively, clearly articulated norms may increase the likelihood Congress will engage in responsible constitutional decisionmaking.

2015 ILR Symposium: Partisan Conflict, Political Structure, and Culture

The Indiana Law Review invites you to join us for our annual symposium, titled Partisan Conflict, Political Structure, and Culture, on Friday, November 6, 2015 from 8:50 a.m. to 4:00 p.m. A detailed agenda can be found here.

Online Registration for Outside Attendees
Online Registration ONLY for IU McKinney Students, Faculty, and Staff