Indiana Law Review

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

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), [].

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), [].

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), []. 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), [].

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), []. 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), []. 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

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), []. 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

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), []. 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), []. 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), []. 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

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), [].

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), []. 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 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

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), [].  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

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), []. 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), []. 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), []. 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

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), []. 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), []. 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), []. 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), []. 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