IndyLaw Net is an independent weblog written and managed by students and alumni of the Indiana University School of Law in Indianapolis, serving the IU Law-Indy community.

We welcome and encourage comments... Please check out ILN's commenting policy

Editor-in-chief, webmaster:
Lucas Sayre

Associate editors:
Karl Born

Karl Born
Brian Deiwert
Lucas Sayre
Kelly Scanlan
Nathan Van Sell


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Sapere aude - dare to be wise
Monday, February 28, 2005
Judicial nomination showdown
Posted 10:11 AM by Luke
When Chief Justice Rehnquist announces his resignation later this year, as he is likely to do, a battle of rare proportions will ensue in the United States Senate. As I see it, there are four possible, but not equally likely, scenarios:

1. The President will find a moderate or relatively unknown judicial nominee, and both parties will approve this nominee with little conflict... This is unlikely. With today's incredible political pressure surrounding the nomination process, any candidate will be subjected to intense scrutiny. With abortion and other social issues on the block, too much is at stake;

2. The President will nominate a conservative of his liking, the Democrats will threaten filibuster, and the Republicans will use the so-called "nuclear option" to unilaterally declare filibustering of judicial nominees to be unconstitutional, then requiring a simple majority to approve the nomination... Majority leader Frist keeps talking up this option, but this might be mere hot air to pressure the Democrats. Judiciary Committee Chair, Arlen Specter, recently said that the "nuclear option" would be a bad idea;

3. The President will nominate a conservative of his liking, the Democrats will threaten filibuster, and the Republicans will force them to filibuster for a long duration, resulting in a virtual shutdown of the Senate. Eventually the two sides would be forced to find a compromise candidate, or option #4;

4. The two sides will be unable to agree upon President Bush's pick and the Court will be short a justice... The Supreme Court may have less than 9 members, but I believe that Congress must pass a law to change the current number. Please let me know if I have this aspect incorrect.
Friday, February 25, 2005
This Land Was You Land
Posted 12:59 PM by Brian D.
Seven justices of the Supreme Court held oral arguments yesterday in the Kelo v. New London case, possibly the most significant eminent domain case since Poletown. Seven families in an economically depressed working-class Victorian neighborhood are fighting the city of New London's plan to use eminent domain against them for private redevelopment. The Fifth Amendment requires that owners are given "just compensation" and that the land in question go to a "public use." Traditionally eminent domain was used to build public works such as roads, bridges, railroads, and convention centers.
But in a 1954 case, Berman v. Parker, the Supreme Court found that "public use"
could include condemning blighted neighborhoods to build better ones. Fort
Trumbull isn't blighted, but since the Michigan Supreme Court decided its famous Poletown case in 1981—razing hundreds of homes to build
a GM plant—many jurisdictions have insisted that increased tax revenues and
the prospect of new jobs was "public use" enough to justify nabbing land that
subsequently became Costcos, shopping malls, and fancy office buildings.

To demonstrate how far this concept can go the homeowners' attorney stated, ""Every home, church, and corner store would produce more tax revenue if it was turned into a shopping mall[.]" . . . There can be no limit to what the state can condemn if the only requirement is that the proposed project improve the tax base." The attorney asked the court "to implement two requirements in eminent domain cases: some proof that the proposed future use is truly likely to happen, and his backup test—that there be "minimum standards" showing actual benefits to taxpayers."

City of New London attorney, Wesley Horton, when answering questions about this nearly unlimited use of eminent domain had this exchange with the Justices.
[Justice O'Connor asking,] What if there's a Motel 6 but the city thinks a Ritz-Carlton will generate more taxes? Is that OK?
Yes, says Horton.
"So you can always take from A and give to B if B pays more taxes?" asks Scalia.
"If they are significantly more taxes," says Horton
"But that will always happen. Unless it's a firehouse or a school," protests Kennedy.

In my Property class I thought Poletown was wrongly decided. It was bad enough a working class neighborhood was demolished for the benefit of General Motors. Ironically enough a neighborhood that had several GM employees working at it. The fact the neighborhood became a asphalt parking lot for the plant added insult to the injury. The article writer, Dahlia Lithwick, believes that, "It doesn't look like the good folks of Fort Trumbull will garner many votes today at all—save for that of Justice Scalia, who channels the many libertarian amici in this case when he repeats that you can constitutionally condemn land and give it to a private entity—a railroad or public utility. "But you can't give it to a private corporation just because it might increase taxes.""
Thursday, February 24, 2005
A state of abeyance
Posted 2:38 PM by Joshua Claybourn
by Joshua Claybourn and Lucas Sayre

On Monday IndyLaw Net (ILN) reported that a multi-million dollar expansion proposal at Indiana University School of Law - Indianapolis had been terminated. Financial and moral support from donors and alumni had been secured, and preliminary architectural drawings had even been prepared. But the expansion was terminated, at least in part, according to some sources, because of a desire to keep Bloomington's law school "ahead" of its sister school in Indianapolis.

Subsequent investigations by ILN revealed a series of deceptions and lies on the part of Indiana University Vice President J. Terry Clapacs. Here you can see Clapacs' changing story about the termination, a bogus response on his part, and outright contradictions among school administrators. Clapacs has lied not only to the staff of ILN but, it seems, his fellow colleagues.

The story offers intra-school conflict, multi-million dollar expansion denials, and lying university administrators. But now those responsible have stopped talking, and the mainstream media lost interest. In all likelihood the whole episode will go down as a footnote in the school's history, if that, and the events will fade from memory.

But it doesn't have to be that way. We should not stand idly by as IU officials continually mislead and undermine the very constituents they're paid to serve. The IU leadership style that is largely attributable to Vice President Clapacs is the norm rather than the exception over the past decade. Yet we have reason to hope. President Adam Herbert is new to the IU system and brings a fresh perspective with a record of results. We look forward to real structural reform that will revitalize Indiana University as a leading worldwide institution of higher education.
Wednesday, February 23, 2005
IU Official: Vice President Clapacs terminated the expansion proposal
Posted 9:00 AM by Luke
Despite Vice President Clapacs' statement below that his office "does not approve or disapprove" expansion proposals, according to further correspondence obtained by ILN, Patrick Murray, the Director of the Bureau of Facilities Programming and Utilization wrote in an e-mail dated on April 17, 2003:
At a staff meeting several weeks ago, Terry Clapacs, VP for Administration said that he did not want to proceed with the addition to the new IUPUI Law School building. He asked me to tell the Dean.

[It should be noted that this decision by VP Clapacs to terminate the expansion occurred three weeks before acting Chancellor William Plater's e-mail (see yesterday's article) saying that he had reached the conclusion with Clapacs and Meadows to terminate the proposal.]
Expansion diagram
Posted 8:59 AM by Luke
The expansion proposal, which Vice President Clapacs said were in "very preliminary form," had funding already pledged, a planned use for the space, and architectural planning diagrams:

Vice President Clapacs responds
Posted 8:58 AM by Luke
Here is the full text of Vice President Clapacs' response to ILN:
Let [me] share with you my take on this matter. When you used the word proposal I thought you meant something in written form and if that is your meaning, I never saw anything that well developed. I was involved in conversations with Chancellor Bepko and Bob Meadows about the typical planning this case whether the present Law Building could or should expand and if so in what direction. The two choices are obvious..along West St. to the north or along New York to the west. Our recommendation was that if we are to move ahead with an addition it should be to the west.

The real question was whether it was a good idea to use land area in that block for purposes not directly related to the academic mission of the Law School. That is to say should we save available space for library, classroom, and faculty office space in the future or use it now for functions that have some relationship to the Law School but are not as central to the core mission as the spaces just listed. The entire concept was in very preliminary form and while I understood there might be funding resources available it was never developed to the point where it could be advanced to the IU Trustees for approval. My office does not approve or disapprove. I don't recall having any conversation with the Dean about the idea but assumed Chancellor Bepko was handling that communication. The IU Bloomington Law School played no part in any of the discussions as far as I know.
Student Note Extinction?
Posted 7:06 AM by Joshua Claybourn
Prof. Kerr argues that the future of students notes may be threatened by blogs:
Case comments traditionally have served three functions: 1) Alerting readers to a recent decision, 2) Offering a scholarly assessment of the decision soon after the decision is out, hopefully before academics and appeals courts have had time to digest it, and 3) Helping editors improve their writing skills and generating a writing sample for future job applications.
Prof. Kerr argues, correctly, that blogs accomplish the first two functions as good or better than notes. The third may be a reason to keep student notes alive, but not for long. "[M]y prediction is that journals will eventually stop publishing case comments and instead focus more on scholarship surveys (where student reviews could be very helpful) and broader note topics."
Tuesday, February 22, 2005
Questions Surround IU - Indianapolis Expansion
Posted 12:58 PM by Luke
Since ILN's article yesterday on the proposed expansion to the Indianapolis law school, some confusion has arisen regarding the status of that proposal-- calling into question the credibility of certain Indiana University Officials.

In an e-mail to ILN, J. Terry Clapacs, Vice President and Chief Adminstrator for IU, first claimed ignorance of the proposal, "Where in Bloomington was the original proposal sent? What was the response and who provided that response?"

But subsequently Mr. Clapacs acknowledged the existence of the proposal but stated that it had never been terminated, "I don't believe anyone killed this proposal."

When contacted via phone, IU's University Architect Robert Meadows stated that his office fills only an advisory role and had no power to decline the expansion proposal.
He added that his office reviewed the planned expansion to ascertain the best location as well as its cost. "If they want to expand, they can expand," said Meadows stressing that Dean Tarr would have had to get the permission of the IUPUI Chancellor to proceed with the expansion.

But in an e-mail obtained by ILN, William M. Plater, the acting Chancellor of IUPUI at the time of this proposal's consideration, wrote a handful of IU Law - Indianapolis officials and alumni, saying:
We had an opportunity to talk with Terry Clapacs and Bob Meadows today about the proposed extension of Inlow Hall along New York. While there is much support for you and your plans, the conclusion is that we cannot agree to an extension.
Mr. Clapacs and Mr. Meadows had indicated to ILN that they were unaware of a decision by Mr. Plater, but according to Mr. Plater's e-mail, they were instrumental in the decision to terminate the proposal.

Finally, no rationale or basis for the decision to terminate the proposal were ever ever provided.

Current IUPUI Chancellor Bantz, and IU President Adam Herbert have not responded to requests for comment.
Expansion cont'd
Posted 12:15 PM by Joshua Claybourn
In yesterday's post on expansion plans at Indiana University School of Law - Indianapolis, it is important to note that it was not the IU School of Law - Bloomington's administration that stonewalled or openly opposed expansion plans. As far as ILN knows, the administrators of IUB's law school are upstanding people with no qualms or ill-will toward the Indianapolis campus. Rather, blame for the expansion's termination lies with central IU administration officials affiliated with Bloomington's campus.

Check back soon for more, as the story is developing.
Monday, February 21, 2005
Unlinked Drudge headline:
Posted 9:34 PM by Luke

Update: Here is that Times article, Drudge was referring to. It's just speculation, as there has been no word from the Chief Justice.
Expansion details
Posted 4:51 PM by Joshua Claybourn
The following is a statement in email form from the University Architect, Robert E. Meadows, who also serves as Assistant Vice President:
The University Architect’s Office was asked last year to investigate the expansion of Inlow Hall. With the assistance of the University Master Planner the open space directly to the west of the existing building, on New York, was selected as a possible site for the expansion. This very quick study determined that enlarging the building was feasible but would be very costly. Expansion to the north was not determined to be feasible do [sic] to the location of the existing library.
In the end, of course, no expansion was accepted. Check back tomorrow for responses from IU administration officials.
Stifling Jealousy
Posted 8:34 AM by Joshua Claybourn
For several weeks now has learned about disturbing events surrounding expansion plans at Indiana University School of Law - Indianapolis. For various reasons we've witheld formal publication of these developments, but information from various high ranking administration officials has forced our hand.

In essence, plans have been in the works to expand IU Law - Indianapolis both physically and substantively. The plans called for an addition to the building, which would house the Indiana State Bar Association (ISBA) and the Indiana Bar Foundation (IBF). Others suggested an expansion of the Center for Intellectual Property Law as well. Dean Tarr set about securing money, donations, and support from alumni and the local legal community. As Dean Tarr has done so many times in the past, he succeeded in drumming up support and moved forward with the plans.

Yet when Dean Tarr sent the proposal to Bloomington for approval, he met an all too common resistance. Bloomington, it seems, was fearful of being overshadowed by its Indianapolis counterpart. IU Law - Indy found similar resistance to the building of Inlow Hall in the late 1990s, but this time Bloomington's jealous efforts succeeded. Bloomington will attempt to block any expansion plans in Indianapolis until Bloomington's law school has had their own chance to expand. This is not, according to reports, the reason that Dean Tarr left, but one would be understandably frustrated by the IU bureaucracy. The groups pledging to fund and support the expansion are furious.

The flap highlights a significant problem in the Indiana University leadership structure. There are simply too many administrators with too many arbitrary powers. Vice President Clapacs told Dean Tarr the project was put "on hold," but it took acting President Bepko to relay the project's termination.

No university is perfect, but IU seems to carry more than its fair share of jealous administrators, needless bureaucracy, and in-fighting that ultimately restricts the school's full potential. We wait anxiously for President Herbert to act by cleaning up the IU administrative system through streamlining its structure and promoting healthy competition rather than jealous bickering.

Correction: ILN originally reported that the Indianapolis Bar Association would be housed in the expansion. However, as noted in the corrected post above, it was the Indiana State Bar Association (ISBA) and the Indiana Bar Foundation (IBF) that would be in the new building.
Sunday, February 20, 2005
Only 2 Days Until the February 2005 Bar Exam
Posted 6:51 PM by Kelly
2 days until the big day!!! Good karma, good luck, best wishes, and ~~~~~~waves of law knowledge to all those taking the bar exam this week!!!
Saturday, February 19, 2005
Indiana and the gay marriage battle
Posted 11:53 AM by Luke
The three couples who have hereforth challenged the constitutionality of an Indiana statute defining marriage as a union of a man and woman have decided to not appeal the case to the Indiana Supreme Court, following their loss in the court of appeals.

Instead, gay advocacy groups are focusing their efforts on defeating an amendment to the Indiana constitution that would ban gay marriage "or the incidents thereof."

Indiana constitutional amendments must be passed by two successive general assemblies and then be approved by the voters. The amendment should pass easily in the general assembly this year.

IU Law-Indy's very own, Professor Jennifer A. Drobac, was quoted in this article in The Advocate:
If the plaintiffs had appealed and lost, the supreme court decision would have influenced other state laws, said Jennifer A. Drobac, an associate professor at the Indiana School of Law in Indianapolis. "On a more personal level, continued litigation to secure basic civil rights exacts a heavy emotional toll on plaintiffs," she said. "Litigants often feel isolated and demoralized when respected members of their community reject their plea for equal rights."
Friday, February 18, 2005
The law is a ass
Posted 12:11 PM by Luke
"I hope," said Mr. Bumble, looking about him with great ruefulness, as Mr. Grimwig disappeared with the two old women: I hope that this unfortunate little circumstance will not deprive me of my porochial office?"

"Indeed it will," replied Mr. Brownlow. "You may make up your mind to that, and think yourself well off besides."

"It was all Mrs. Bumble. She would do it," urged Mr. Bumble; first looking round to ascertain that his partner had left the room.

"That is no excuse," replied Mr. Brownlow. "You were present on the occasion of the destruction of these trinkets, and indeed are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction."

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass- a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience- by experience."

- from Charles Dickens, "Oliver Twist"
Tuesday, February 15, 2005
Ehrlich versus The Sun: round 1
Posted 10:44 AM by Luke
The Baltimore Sun had it's lawsuit against Maryland governor Bob Ehrlich dismissed by a Federal judge yesterday. The Supreme Court has ruled in the past that the government may not "chill" a media organization by limiting it's access in response to the content of their reporting. However:
Byron L. Warnken, an associate professor at the University of Baltimore School of Law, said he was not surprised by the lawsuit's dismissal because the directive applied only to two journalists, not the newspaper's entire staff. Nitkin and Olesker could still attend news conferences and gather information through other means. "The level of intrusion on their First Amendment rights is so minimal" as to not constitute a violation, he said.
The legality of gay marriage
Posted 12:27 AM by Luke
As an amendment to the Indiana constitution, to ban gay marriage, marches forward in the General Assembly, the question must be asked: how does same-sex marriage threaten marriage between a man and a woman? And if it really does not, why amend the constitution to ban it?

Many also argue that constitutionally protecting gay marriage would set a terrible legal precedent opening the door to the legalization of polygamy, incest, beastiality, plural marriages, etc. While many make these claims, especially politicians, few can actually back them up. I urge them to read the Equal Protection Clause of the 14th Amendment and try again.
Sunday, February 13, 2005
Talent Show photos
Posted 12:45 PM by Luke
Congratulations to all of the performers of the 2005 Law Revue talent show. The law school's atrium was packed and a good time had by all.

Click here to see the photo album for the event... For a full-size (2048 x 1536) version of any of the album's images, e-mail us with the image numbers of the images you would like.

Friday, February 11, 2005
Wednesday, February 09, 2005
The annual Law Revue talent show!
Posted 8:45 PM by Luke
When: Saturday, 7 P.M. (get there early as it is standing room only by the start time)
Where: Law School Atrium

You can still get tickets for it. They are only $5... a steal.
Senate panel OKs class-action reform bill
Posted 9:29 AM by Luke
The Senate Judiciary Committee passed President Bush's proposed class-action reform bill to the Senate as a whole. Similar progress is occurring in the House, and the bill looks to become good law soon.

The proposed bill would fast-track class-action suits to federal courts, removing state court jurisdiction over them in many cases. The idea is that this would add an element of consistency to class-action suits, which is currently missing in the state-shopping process that most class-action attorneys use today. Plus, federal courts are known for more easily dismissing such cases.

Critics say the plan would kill class-action cases too easily, because the federal courts are overburdened and will not want to spend time on these cases. An amendment to require federal courts to hear the cases and not summarily dismiss them is likely to be proposed before passage.
Tuesday, February 08, 2005
Law Review Article Length
Posted 1:27 PM by Joshua Claybourn
Prof. Orrin Kerr addresses the length of law review articles and notes that "some of the top law reviews in the country have agreed to a statement of principles discouraging particularly lengthy submissions." Specifically, the main law reviews at Columbia, Cornell, Duke, Georgetown, Harvard, Michigan, Stanford, Texas, Penn, Virginia, and Yale have agreed to "rethink" the length of articles they agree to publish:
The vast majority of law review articles can effectively convey their arguments within the range of 40-70 law review pages, and any impression that law reviews only publish or strongly prefer lengthier articles should be dispelled. Ultimately, individual law reviews will have to decide for themselves how best to resolve these concerns. Please know, however, that editors across the country are cognizant of the troubling trend toward longer articles and are actively exploring how to address it.
There is no word yet from IU-Indy's law reviews, and whether they see the so-called trend as a problem. However, for current and future members of the reviews, the developments are worth following.
Monday, February 07, 2005
Raping The Law
Posted 9:19 PM by Brian D.
Coconino County prosecutors and the Crime Victims Legal Assistance Project in Arizona are challenging Arizona's disparity between the crimes of rape and spousal rape. A rape in Arizona can be punishable up to 14 years in prison. However, if the rape occurs between a married couple it is considered the lowest form of felony, with a higher burden of proof than a standard rape, and is punishable for up to 18 months with the possibility of no prison time at all.
Prosecutors in Coconino County . . . say the disparity is unconstitutional. So in addition to bringing kidnapping and assault charges against [an alleged perpetrator], they have charged him under the standard rape law, setting the stage for a legal battle over whether Arizona's spousal rape statute violates the Constitution's equal protection guarantees. . . . "It treats victims differently solely because of their marital status," said Keli Luther of the Crime Victims Legal Assistance Project in Arizona. "We think this is really archaic."

Approximately half the states treat spousal rape differently from rape.
Many spousal rape laws were drafted in the 1970s and were considered progressive at the time, because they recognized it was possible to rape a spouse. Historically, wives were considered the property of their husbands, and sex was regarded as a wifely duty.

Previous attempts to resolve the disparity in Arizona law failed due to legislators' concern over the difficulty in proving charges when the victim and defendant had a prior sexual relationship and the possibility of false allegations.
Nobody is above the law
Posted 5:43 PM by Luke
Surely all of ILN's readers have heard of Ohio Supreme Court justice, Alice Resnick's, DUI last week, but have you seen the videos?

Didn't think so. See all three video segments taken from the police trooper's vehicle: video1, video2, video3

Ms. Resnick's emotions ranged from indignance to embarrassment, but the highlight lowlight of the incident was when she said to the policeman: "I've always said a Supreme Court justice should have a highway patrolman driving them."

Ordinarily I would not join in the media's collective "piling on" an individual, but Ms. Resnick's "I should be above the law" attitude, as evidenced by her actions in that video, is deplorable and it needs to be shown.
ACLU on Border Security
Posted 3:18 PM by Alan W. Bauerle
(As seen on the list-serv... reprinted in an effort to re-route comments here, and to give "equal time")

The United States is a nation of immigrants with a long, proud history of granting asylum to those fleeing from religious or political persecution. But “security reform” legislation introduced in Congress threatens to make a mockery of that tradition with a requirement that would force many asylum seekers to get supporting evidence from the very governments they are fleeing.

This proposed bill would also expand the PATRIOT Act to make it possible to deport long-term permanent residents for providing non-violent, humanitarian support to organizations later labeled as "terrorist" by the government, even where such support was completely legal at the time it was provided. For example, people could be deported if they gave money to a tsunami relief organization and -- years from now -- the government decided the organization was involved
in terrorism-related activities.

Another provision of the bill would exacerbate already troubling driver's license provisions in the intelligence reform legislation by forcing state motor vehicle departments to implement complex immigrant laws without training or additional funds.

Several of the bill’s controversial provisions were pulled from last year’s intelligence reform legislation in part because of action by concerned individuals like you, and we need to ensure they do not pass this time either.

Take Action! Urge your Representative to oppose this unnecessary assault on immigrants that would undermine our national commitment to freedom and liberty.

Click here for more information and to take action:
Saturday, February 05, 2005
Who Wants To Be The Chief Justice?
Posted 7:20 PM by Brian D.
Supreme Court Justice Antonin Scalia "is doing nothing to discourage talk that he would like to be Bush's pick if Rehnquist steps aside this year. Scalia's ascension is considered a long shot because the staunchly conservative justice would prompt a firestorm of opposition from Democrats, abortion rights supporters and others groups. Nonetheless, Scalia seems to be relishing, if not subtly encouraging, the speculation."

Due to the political nature of judicial appointments, some believe it is more important to focus on the additional justices to replace those likely to retire within the next few years than on confirming Justice Scalia as the next Chief Justice.
Even some conservatives say a bitter Senate fight over Scalia might not be worth it if it forces Bush to choose a more moderate candidate for associate justice to ensure approval of both nominees. Such a scenario would move the court to the left because Scalia's replacement would not be the solid conservative vote Rehnquist has been for 33 years.

An interesting note I had never though of before.
The main power of a chief justice comes from assigning opinions to justices. Often, that, determines the tone and breadth of an opinion. Apart from that, however, the job is largely administrative.

The Latest Tort: Baking Cookies
Posted 7:03 PM by Brian D.
Two friendly teen-age girls were ordered to pay medical costs for a neighbor after the pair delivered home made cookies.
Wanita Renea Young, 49, filed a lawsuit complaining that the unsolicited cookies, left at her house after the girls knocked on her door, had triggered an anxiety attack that sent her to the hospital the next day.

Two two girls, ages 17 and 18, "baked cookies as a surprise for several of their rural Colorado neighbors on July 31 and dropped off small batches on their porches, accompanied by red or pink paper hearts and the message: "Have a great night."" The girls wished to avoid a dance where "there might be cursing and drinking." Six neighbors wrote letters thanking the two girls for the care packages.

However Wanita Young was frightened by the knock on her front door. She went to the hospital the next morning fearing she suffered a heart attack. The judge "did not award punitive damages. He said he did not think the girls had acted maliciously but that 10:30 was fairly late at night for them to be out."
Helping defend those accused in capital cases
Posted 5:39 PM by Luke
No matter where one stands on the issue of capital punishment, all should agree that as long as it is legal, defendants deserve competent counsel in such cases. If an individual is put to death for a crime he or she did not commit, our legal system has failed in the worst possible way.

To this end, President Bush announced in his State of the Union speech a plan to finance training for defense counsels for capital cases. According to this NYTimes editorial:
According to sketchy details provided by the White House, Mr. Bush will ask Congress to spend $50 million over three years, mostly to underwrite efforts by bar associations and others to provide special training for lawyers, judges and prosecutors involved in capital cases. . .

Beyond expanded training, the new law contains well-written provisions that set standards for effective representation and provide large financial incentives for states to meet them. So all eyes are on Monday's budget - we hope it includes financing for these incentives, which will reveal Mr. Bush's true commitment to death penalty reform.

While certainly admirable in it's intentions, this proposal raises two concerns, as I see them. First: a federalism issue. How much influence should states have in the training and order of their own lawyers, and how much influence should the federal government have? Second: government bias. If the legal profession learns to "lean on" organizations which are financed by the government, for its training, do they give the government too much power to influence the legal profession by its choice of organizations and their positions on matters of law and ethics?

While I raise these issues, I do not purport to have sufficient knowledge to take a stand on either.
Friday, February 04, 2005
The 60% Solution
Posted 10:16 AM by Joshua Claybourn
Gregg Easterbrook has a provocative piece in the OpinionJournal arguing that the "Six Commandments" Jesus taught "could hang in any public facility without jeopardizing the separation of church and state." According to Easterbrook, this is a win-win.
Thursday, February 03, 2005
Request for a consistent explanation
Posted 3:50 PM by Alan W. Bauerle
A brief discussion before class last week led me to ask a question, and I hope it might produce some thoughtful answers here.

In the Presidential debates (could November 3rd actually have happened only 3 months ago?!), John Kerry noted that the Gay Marriage issue was more properly left to the states. However, in other comments he opposed overturning the Roe v Wade decision and sending the abortion issue back to the states. Since the nature of the privacy right is almost identical in each situation (familial and procreational choices), why would one be a state issue, and one a federal issue? I can see arguments for both being either a state or federal issue, but have not yet heard a coherent argument for treating them differently (other than one pragmatist friend's offering of "That's the easiest way for [one] side to win on both issues!")

Does anyone want to field this one?

Wednesday, February 02, 2005
Upcoming events
Posted 2:48 PM by Luke
Feb.4: This Friday, Phi Alpha Delta is hosting a party at the Bourbon Street Distillery, festivities to bein at 8 P.M. According to their e-mail, "there will be free beer for as long as it lasts." It's open to all students, not just PAD members.

[check back with ILN for regular event updates]
KU on the move
Posted 8:43 AM by Joshua Claybourn
Bobby Allison-Gallimore has created a new journal of sorts at the University of Kansas School of Law called PERSPECTIVES ON LAW AND CONTEMPORARY CULTURE. The publication focuses on four main areas where law intersects culture: cultural law, demystifying law, law impacting culture, and trends. Here's more in a letter from the editors where they note
". . . items published in PLCC will include not only more traditional scholarly pieces but also essay-type pieces that will provide information and commentary in a shorter and less-formal style. Our goal is to expand the readership of PLCC to include not only legal scholars and professionals but also a more general audience of educated persons with an interest in the issues addressed in our content."
Unlike traditional law reviews, PLCC is based solely online, making it a pioneer in what may become a radically new genre.
Tuesday, February 01, 2005
Long Overdue Judicial Pay Raise
Posted 9:15 AM by Kelly
The House Judiciary Committee voted 11-1 to send a bill proposing pay raises for Indiana prosecutors, trial court judges, magistrates, appeals court judges, and Supreme Court justices to the full House for debate.

This would be the first such raise since 1997. The raises will be funded by a $19 increase in court fees.

These raises are long overdue. Certainly, our judges were already paid a respectable salary. I'm not claiming they or their families are starving. Yet judges have quit their positions and others have been considering it due to the lack of pay increase over the past 7 years. They received not so much as a cost-of-living increase.

Indiana's trial judges currently rank 48th in the nation in judicial pay, appeals court judges rank 31st and the Supreme Court justices rank 33rd.

Our citizens deserve the benefit of having the best and brightest lawyers on the bench serving as judges. And yet, it's difficult to attract and retain these lawyers when the potential to make so much more money exists in private practice.

As Monroe Circuit Judge Marc Kellams, president of the Indiana Judges Association, stated, "lawyers do not go to the bench to make money." But, he continued, they do wonder whether their service is valued when year after year they are denied a pay increase and a cost-of-living adjustment.
Become a prostitute or lose your unemployment...
Posted 8:57 AM by Luke
This is the unfortunate choice that the "wise" German government has forced upon the German people. Since prostitution has been legalized in Germany, brothels can search the unemployment rolls, and unemployed persons cannot deny a legal job and still get unemployment benefits.

Also, apparently the government considered making an exception to the unemployment rules to exclude brothels on moral grounds but decided it could not distinguish them from bars. IrishLaw says it best: Note to German government: in one job you have to pour drinks; in the other you have to sell your body as if you were a mere commodity. Seems like an easy distinction to me.
Rights of Gitmo prisoners upheld
Posted 8:44 AM by Luke
A U.S. district court judge in Washington, D.C. ruled recently that many prisoners held at Guantanamo Bay have a right to due process protections in U.S. courts.
U.S. District Senior Judge Joyce Hens Green said there was "no question" the rights asserted by 54 Guantanamo detainees in a case pending in her court were among "the most fundamental rights recognized by the U.S. Constitution," and that they had the right to due process.

The ruling rejected an appeal by the Bush administration to dismiss lawsuits brought by the 54 detainees, who had challenged their continued confinement, and sets the stage for additional legal fights over the rights of suspected terrorists. The Justice Department already said it will appeal the ruling.

This marks yet another judicial defeat for the Bush administration's efforts to create a legal blackhole where jurisdiction and legal protection do not extend.

As seen in the
National Jurist
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