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


IU-Indy Law
Prof. Jeff Cooper
Daily Contentions
In the Agora
Commentary Track
Justin Gifford
Jelly Beans & Corduroy
Joe Delamater
Just Playin'
Obiter Dictum
Ryan Strup
The Sleepy Sage
Waiting for the Punchline
Myron's Mind
TV Law

Other Law Students
The Rattler
Ambivalent Imbroglio
John Branch
Phil Carter
De Novo
Paul Gutman
Kathryn Janeway
Jewish Buddha
The Kitchen Cabinet
Law Dork
letters from babylon
Letters of Marque
Mixtape Marathon
Notes from the Underground
Andrew Raff
Sua Sponte
Three Years of Hell
Unlearned Hand
Waddling Thunder

Legal Academics
Jack Balkin
Jeff Cooper
Rick Hasen
Lawrence Lessig
Eric Muller
Glenn Reynolds
D. Gordon Smith
Lawrence Solum
Peter Tillers
The Volokh Conspiracy
David Wagner
Tung Yin
White Collar Crime prof blog

Other Academic-types
Andrew R. Cline
Crooked Timber
Brad DeLong
Daniel W. Drezner
Joseph Duemer
Amitai Etzioni
Rebecca Goetz
Kieran Healy
Mark A. R. Kleiman
Brett Marston
History News Network
Michael Tinkler

Other Lawblogs
Program for Judicial Awareness
Howard J. Bashman
Stuart Buck
Janell Grenier
Sam Heldman
Tech Law Advisor
Denise Howell
Ken Lammers
Legal Reader
Math Class for Poets
Nathan Newman
Statutory Construction Zone
Indiana Law Blog
Timothy Sandefur
Fritz Schranck
Stop the Bleating
Pejman Yousefzadeh

Legal News
The Jurist
CNN - Law

Sapere aude - dare to be wise
Thursday, March 31, 2005
Why Did I Pay Good Money to Join the Indianapolis Bar Association?
Posted 4:46 PM by Kelly
Are you a student member of the Indianapolis Bar Association? If so...
*Are you confused about what you GET with that membership?
*Do you wish you knew more about membership?
*Do you have suggestions about how the IBA could better serve students?

If you answered "Yes" to any of these questions (or if you just want free lunch/dinner with IBA members), please join IBA for the Law Student Division Member Meeting.

IBA president John Kautzman and past IBA president Gary Klotz will address members at the meeting.
*Find out more about what the IBA has to offer its students members.
*Learn about upcoming events and how you can become involved.
*Provide feedback on events you like and dislike.
*Sign up to attend or help plan future programs and events.

When: April 7th - Noon (Rm 300, Lunch provided)
April 19th - 5pm (Rm 285, Dinner provided)
Register: at the IBA website.

To learn more about becoming a student member or to apply for membership, visit IBA's website.
Tuesday, March 29, 2005
Sexual Orientation panel wrap
Posted 9:20 PM by Luke
IU Law - Indianapolis was the host this evening of a panel discussion entitled, "Sexual Orientation and Family Status." The discussion included law professors, undergrad professors, pastors, attorneys, and a United States Congressman, and was attended by law students and members of the Indianapolis legal community, together numbering in the hundreds.

Touched off by a question from moderator and IU law professor Mary Mitchell asking the panelists to compare the debate around same-sex marriage with the debate that surrounded interracial marriage in past years, the discussion moved swiftly to a legal and historical debate about the legitimacy of same-sex marriage.

Representative John Hostettler, a Republican representing Indiana's 8th Congressional district and author of the Marriage Protection Act which, if passed, would have removed from the courts' jurisdiction matters dealing with the Defense of Marriage Act, placed the discussion in the expected gravity by beginning his remarks with the statement that "marriage is the cornerstone of our society.

To Hostettler's left was the Reverend Jeff Miner, who leads the midwest's largest gay congregation, here in Indianapolis. Miner warned against Congress's actions to remove gay marriage from the courts' jurisdiction. He stated that such a majoritarian tactic could later result in a backlash: "Conservative Christian groups could be facing a pay day. What if fifty years from now, a majority tried to classify these groups' preaching about homosexuality as hate speech?"

Representative Hostettler staunchly defended Congress's power to regulate the courts' jurisdiction, citing the Constitution, but no precedent of legislation similar to the Marriage Protection Act. Reverend Miner stressed the role of the independent judiciary and the want of the nation's founders to protect against a "tyranny of the majority."

The discussion also dealt shortly with the difference between same-sex marriage and civil unions. Contrary to the assertions of President Bush and many other Republican leaders, Rep. Hostettler stated, "With regards to gay marriage and gay civil unions, as far as the government is concerned, there is no difference." Experts in the legal community disagree on whether the Federal Marriage Amendment, and its similar counterpart in Indiana, ban just same-sex marriage or also civil unions.

In concluding remarks, Dr. Kenneth Falk legal director of the Indiana Civil Liberties Union said, "In the big picture, who cares? I don't see how defending a gay couple's right to marry devalues my own marriage to my wife. In fifty years, people are going to look back on us, just as we now look back on Indiana's inter-racial marriage ban."

For a full list of the panel's speakers, with bios, click here...
Supreme Court updates
Posted 11:16 AM by Luke
I have three stories out of the Supreme Court which are worth relaying...

First, the U.S. Supreme Court refused to hear an appeal of a Pennsylvania Supreme Court ruling that the media can be charged with defamation, when they truthfully publish comments, the publication knows to be false, made by one politician against another. The non-hearing by the nation's high court, does not set precedent, but it is an indication that the media will not be shielded in such cases.

Second, the Court will hear a case today that pits file sharing software companies versus record companies. The question is whether the makers of software which has been used to illegally trade copyrighted material, which can also be used for legitimate file sharing, can be held liable for their software.

Third, the Court will also hear a case today that questions whether cable companies may be forced to open up their networks to competition in the internet service provider arena. A loss for the cable companies could mean cheaper cable internet access in the future.
Monday, March 28, 2005
Sexual Orientation and Familial Status
Posted 6:07 PM by Joshua Claybourn
What: The legal, political, and social communities will discuss the importance of sexual orientation in determining family relationships. Mary Mitchell will moderate the event.

Speakers: Dr. Ellen Ann Andersen, Kenneth Falk, Brad Grammer, United States Representative John Hostettler, Reverend Jeff Miner, Professor Janis Price, Professor Michael Scaperlanda, Professor James Wilets

When: Tuesday, March 29, 2005, 4:30-6:00p.m (tomorrow)

Where: The Conour Atrium, Indiana University School of Law – Indianapolis
Devastating news for IU-Indy
Posted 3:09 PM by Joshua Claybourn
Although US News & World Report's annual ranking of law schools shouldn't matter much, they do, both in the minds of prospective students and in the minds of some firms/judges, among others. A website has obtained the 2006 US News & World Report rankings, and IU-Indy was placed at 95, a whopping 32 places lower than last year. Our sister school in Bloomington jumped four notches to 36.

Update: Brian Leiter has a great evaluation of how US News compiles the rankings. For those interested in the list, this is a great read.
Saturday, March 26, 2005
Politics, Schiavo, and the rule of law
Posted 6:17 PM by Luke
Some have questioned the alleged political motivation behind the congressional GOP's efforts to reinsert Terri Schiavo's feeding tube: if a vast majority of Americans oppose reinserting the tube, then how can their efforts be politically motivated?

I have one theory, supported by some recent developments, which speaks directly to the rule and legitimacy of law in this nation. Republican legislators have done pretty much everything in their power, short of open defiance of court orders, to get the feeding tube reinserted. And when Terri dies, they can shout at the top of their lungs: 'look at these activist judges with all this power! they are out of control!'

Look at the Terri Schiavo Act passed last week. It was publicized as intending to change the jurisdiction of the case, such that a federal district judge could hear the case. Now that that tactic failed, and judges consistently affirmed lower court decisions, the congressional GOP leadership did a 180 and suddenly proclaimed yesterday that the law they passed was intended not just to change the jurisdiction but actually to ORDER the reinsertion of the feeding tube.

Forget for a moment that if this really were the intention, that the law would have been blatently unconstitutional. The problem is that this new intention arose from thin air--why? So the GOP can yell: 'damn activist judges ignored our law.'

Republicans are upset, justifiably so to a large extent, that too many justices have ruled from an aspirational and not a traditional/textual philosophy, and that this is tantamount to legislating from the bench. But the manner and rhetoric many of them use to attack the judiciary, now, is injuring the legitimacy of the court and the rule of law. Have we forgotten that last year the House GOP passed a law that would have removed the Defense of Marriage Act from the Supreme Court's jurisdiction? And a few weeks ago, Sean Hannity was showing off some dude who advocated putting term limits on supreme court justices.

Too many in the public see the courts, the Supreme Court included, as bodies that should carry out their wishes, should make policy. Judicial aspirationalism itself is partly to blame for this attitude, but the latest GOP attacks on the court are perpetuating it.

Tis so short-sighted of them.

[listen to my thoughts on the Republicans attack on the Constitution in this audio post from last year]
Friday, March 25, 2005
How Much Of A Crook Are You?
Posted 9:23 AM by Brian D.
Given the general public's not so nice opionion of the legal profession do you dare take this honesty test?
Thursday, March 24, 2005
Practical Advice for New Female Attorneys
Posted 10:16 AM by Kelly
I had the good fortune a couple weeks ago to attend a luncheon sponsored by our Democratic Law Society and the Women's Caucus in honor of National Women's Month. There was a panel of 4 women: 2 Marion County Superior Court judges and 2 partners from 2 of the big 3 firms in Indianapolis. The panel shared their thoughts on 'women and law' and offered practical advice to new female graduates. (Most, if not all, of the advice is also applicable to males).

Find a Mentor. Find someone in the legal community who can serve as your mentor. It may be a judge or attorney you have already met in your law school endeavors. Mentors can serve as role models, function as sounding boards for problems and conflicts that will be novel to new attorneys, and will often alert mentees to opportunities for their careers of which they would otherwise have not been aware.

Set Boundaries. Don't take on too much in an effort to please superiors or out of the misconception that setting some boundaries is not an option. If faced with a new case or assignment on top of an impossible workload, say "I'm doing A and B and C - help me prioritize so I know what you want done first." New attorneys are reluctant to admit when they are overburdened but need to remember that honesty up front prevents a superior from being inconvenienced later if the work does not get done - or gets done sloppily.

Include Your Family. Talk about work with your children (keeping confidentiality in mind, of course). Broad conflicts that you encounter can be understood by even young children. They might learn some life lessons about conflict resolution and working with others, but most importantly they will feel included. As one panelist put it, "it's not your work life and your home life; it's your whole life." Indeed, as the practice of law can be demanding, having a 'whole life' mindset might help provide some perspective.

Take Control of Your Career. Don't just sit back and let things happen to you. Form a plan, or at least a direction, or else projects will simply come and go and the years will fly by before you've formed a game plan for your career. Take the initiative; be assertive.

Ask for Feedback. Ask your superiors how you are doing and in what ways you can improve your performance and work product. One panelist mentioned that many years ago as a new attorney she requested monthly lunches with her supervising partner for the purpose of assessing her work performance. She found the feedback to be immensely helpful and she continues the monthly lunches to this day.

Don't Burn Any Bridges. This should be self-explanatory. Treat everyone you meet with the level of respect and professionalism you would want in return. This includes the obvious judges and other attorneys, of course. But law students don't forget - your fellow students will for the most part be practicing in your legal community; they are soon to be your colleagues. Respect is key in all interactions. You never know when that person you ticked off in law school will one day be across the courtroom from you or in charge of hiring at the firm to which you wish to transfer. This advice applies to all public interactions, as well. One panelist told of cutting someone off in traffic only to learn later that day it was one of the partners at her new firm.

Don't Take Things Personally. This corresponds to treating everyone with respect. Panelists agreed that they often see attorneys become personally angered or offended by the outcomes of the legal battles they wage. Remember that opposing counsel is just zealously advocating for her client, as are you. Be professional.

Put Family First. Kids will only be young once. Make every effort to attend school programs, sports events, etc.... (This advice was offered by one of the judges on the panel and she didn't offer any examples. While it is excellent advice, I tend to think this is easier said than done depending on the demands of your particular job.)

Be Open to Experiences. Both of the judges on the panel indicated that they did not set out intending to become judges. For one of them, who was in private practice, a local judge requested that they fill in as a commissioner during a temporary absence; this was her first exposure to the possibility of becoming a judge. Be open to such unexpected opportunities.

Break Out of Your Shell. Make an intentional effort to make contacts with others in the legal world. Yes, this means attend functions in the legal community and mingle. It also means call colleagues with whom you have not spoken in a while. Stay in touch with your current classmates; you will be referring clients to these future attorneys and hopefully vice versa. Get involved in your community; serve as a role model for citizens in your area.
Promote thyself
Posted 10:04 AM by Joshua Claybourn
I'm told I'll be booked on Hugh Hewitt's radio show today to discuss the ongoing SchiavoGate controversy. The American Spectator offers a good summary of events here. Click here for a listing of show times and stations.
Message Board added
Posted 12:42 AM by Luke
You may have noticed the new Message Board tab at the top of the site. It is fully functioning and up and running with a Schiavo thread already posted.

So when you get that urge to rant over the student listserv, just think of the inboxes and take advantage of this cool new feature on ILN instead.
Tuesday, March 22, 2005
Irish Supreme Court Justice speaks at IU Law
Posted 5:15 PM by Luke
"Global forces do not cross frontiers, they transcend them."

- Hon. John L. Murray, Justice Supreme Court of Ireland, 3/22/2005

At the IU Law-Indianapolis Wynne Courtroom this evening, Irish Supreme Court justice John Murray spoke about globalization and its ability to protect human rights. Tracing the source of globalization to technological innovation, Murray said that it is revered for its uncanny power to do good, but also feared for this awesome power which global actors often feel is beyond their control.

He stated his belief that the world wars to which the 20th century was witness, were largely a product of nation-states acting in their own self-interests. Globalization has the potential to negate this factor, he argues.

Mr. Justice Murray then launched into a brief analysis of globalization in Europe from a legal perspective. Outlining several instances where national law and European Community law conflicted, such as a particular instance in Britain and one in Germany, Murray stressed that when in conflict Community law has generally won out.

"The economic success of Europe," said Murray, "would never have occurred without the stability of the law and protection of human rights there." Without the protection of human rights, the EC would have no credibility, he added. "However, I am not suggesting that the sole solution for the protection of human rights lies in the international community. The primary means of protection must still rest in the institutions of the nation-state, acting in their self interests."

Murray stated that when nations' self interests conflict with international norms, a balance must be struck between the values of human rights and state sovereignty. Globalization is a mechanism to avoid such conflicts, by bringing to nations a common purpose.

[photos forthcoming]
Sunday, March 20, 2005
Scheduling Tips And Suggestions
Posted 11:28 PM by Brian D.
The new class schedules for summer and fall are published along with a probable Spring 2006 schedule. While this advice will mostly apply to the 1Ls, some upperclassman might find it useful. I’m always asked by numerous people what classes they should take for next year. Please keep in mind this is just my personal advice and others may disagree with me.

1. What classes should I take?
Okay, that is a very broad question. Here are my general rules of thumb to selecting possible classes.

First Rule: If you find a boutique class that is not offered very often and you would feel really bad if you never took it, then take that class.
Specialized classes like Toxic Torts, Food and Drug Law, National Security and Foreign Relations, and Admiralty Law don’t get offered every semester. If you really want it, take it! It always helps to take classes you are interested in and look forward to as you will take plenty of classes that you do not like as much.

Second Rule: take required to graduate classes.
Luckily for you Professional Responsibility, Constitutional Law, and LARC III are offered every semester. Take at least one of those required classes in the fall. PR is required for many internships and clinics so it is important. Con Law is a requirement for a fair number of other advanced level classes.

Third Rule: take classes that are bar exam subjects.
Business Associations, Criminal Procedure, Trusts and Estates, Income Tax, etc. It is good to have some exposure to those subjects before taking review classes and the Bar Exam itself.

Fourth Rule: any class that fits in your schedule and still maintains an average of 15 credits per semester.
If you do not take any summer classes a full-time day student needs to average 15 credits per semester to graduate in 3 years. If the above rules do not fill up your schedule, then find a class that fits in your schedule. That is a last ditch effort and you should not have to fall back on this rule. If you are a night student please adjust those numbers accordingly to your requirements.

2. Should I take two 4 credit classes in the same semester?
I’ll give you the classic lawyer answer: it depends! Here are the pros and cons of taking two 4 credit classes at the same time.

Pros: You’ll have a heavily focused class schedule on two days, usually Tuesday and Thursday. Depending on the timing of other classes you will have much open time to do other things such as a job, a class intern/externship, or a clinic.

Cons: It can be a bear to study for two 4 credit classes at the same time. You’ll need to manage your time wisely. Two 4 credit final exams will be quite a weight on your GPA, especially if the grades are not as high as you wanted. Also by spreading out your 4 credit classes throughout your academic career you will avoid taking 6 classes in one semester and having 6 final exams! One 4 credit class fills up a lot of good space on a schedule and will prevent that problem.

3. Should I take any summer classes?
If you are in town, then sure why not? Get two classes out of the way and it will free up your schedule down the road. If you take 4 credits in the summer session, then you could take one less class in both the upcoming Fall and Spring semesters and still be on track to graduate on time, and be able to relax a little bit during the year.

I personally recommend Professional Responsibility just so you get that little nagging required class out of the way. PR is also required before you take the Multistate Professional Responsibility Exam (MPRE). You can take the MPRE up to two years before taking the bar. In theory you could take PR this summer, take the August MPRE and be done with that requirement before Fall classes begin. PR is popular so if you can’t get into that class at least take something.

4. Should I take both Law Review and LARC III/Moot Court at the same time?
First please realize that on the day your register you will not be able to schedule Law Review for yourself, unless you are already on one. If you write onto a Law Review you will be able to register for it around the time classes start up in the fall. You will want to schedule a 2 credit class that you are willing to drop if you participate on a Law Review.

That being said, you will be doing a lot of research and writing for LARC III, writing your Moot Court brief, editing Law Review Notes and Articles, and performing research and some writing of your own Note for Law Review in the same semester. It will be a ton of work. It is workable, but I very much recommend taking some summer classes this summer or next summer so that you take only 12 or 13 credits in the Fall Semester if you take both LARC III/Moot Court and Law Review. I really wish I took my own advice.

If you’re a 3L getting onto Law Review you’ll already have LARC III out of the way. If you’re going to be a 2L next fall, then you won’t have a choice really. You’ll do both because you have no choice, whether or not you do LARC III in the fall or the spring.

5. Speaking of Law Review, if I can not register for it, then how do I get on one?
There will be several informational sessions coming over the next few weeks, but the nutshell is that you will write onto one. I would not count on being in the top 10 percent of your class to get an automatic invite (I believe all three reviews do that now) because if you end up being wrong when the grades come out in June it will be too late to do anything about it. Do not be cocky as I have seen several people suddenly on the wrong side of the bell curve.

As you are leaving your last final exam several people will be handing out packets by the door. That packet contains a problem, several cases and statutes that you will need to write your memo on. You DO NOT perform any outside research as it is a self-contained problem. You will have about 3 weeks or so to write it. Go ahead and take the week off after finals to let your brain decompress. I spent about 4 hard days writing my memo. You can spread out that effort over the two weeks before the deadline and be in excellent shape while not really doing that much effort per day. The memo will have a 6 or 7 page limit on it so it will not be that big.

P.S. read it out loud before you mail it in. You will be amazed at the mistakes you catch when you read it out loud.

6. What about internships or clinics to take?
This school is fantastic in that it offers many chances for you to get some real world experience for class credit. My internships in the Program on Law & State Government and the Court Internships provided some of the best experience I’ve had in school. Others rave about their participation in the various clinic programs. While many deadlines have already passed for participating in these programs this fall, do keep them in mind for later in your academic career. I strongly believe that if you graduate from this school without taking a clinic or internship, then you’ve lost a valuable opportunity.

All clinics have certain prereqs. If you want to be in a certain clinic before you graduate, make sure you take the prerequisite classes before hand. You could take the prereqs this summer and fall in order to be ready for the clinic by next spring. When planning for classes to take you're not only planning for the next semester, but for the following semesters! That is why you should look at the proposed spring schedule as well.

7. I know what classes I want, but is there an order to how to schedule them?
If you know that you are wanting a popular class, register for that one first. If that class is full, then put it on the waitlist! You might still get in. Then continue down your list. Here is the best tip to give you: HAVE BACKUP CLASSES! For every class you want have a backup class ready so that if one is full, you can automatically put the one you want on waitlist, then select a predetermined backup class and then go on your merry way. The backup class can be the same date/time or something different as long as the classes you want or have on backup will not overlap time-wise. Time conflicts are not good. You absolutely do not want to randomly select classes just to have something scheduled.

Put your class selections on a piece of paper in the order you want to select them. Be sure to have course numbers written out and a few backup classes preselected. 10 minutes scratching out diagrams and numbers on a piece of paper will save you much time on the computer when it is time to register online.

8. Be sure to check the final exam schedules to the classes you want!
I think the reasoning behind this is pretty obvious. You can not be in two places at the same time, or you do not really want to take two final exams on the same day unless you just can not help it. Good luck and I hope these tips from your Uncle Brian help you out.
Tuesday, March 15, 2005
Justice Dickson To Deliver Ethics Lecture
Posted 12:30 PM by Brian D.
Indiana Supreme Court Justice Brent Dickson will speak on “Recent Developments in Indiana Ethics” as part of the Indiana University School of Law-Indianapolis Law Reunion Weekend on Saturday, April 9th.

Justice Dickson is a 1968 alum of our school.
Saturday, March 12, 2005
Friday, March 11, 2005
Class Schedules Are Out
Posted 1:52 PM by Brian D.
I haven't had a chance to confirm this, but I've been informed the class schedules are out in paper format in that little hallway to the Recorder's office. As of 1:50pm today the class schedules are not online yet. Keep checking here to see the online version when available.

Scheduling tips will be available after Spring Break.
Good Luck On MPRE
Posted 1:45 PM by Brian D.
For those taking the MPRE tomorrow good luck!

Just remember, almost everyone thinks the real exam is more difficult than the practice exams. If you've put forth a decent amount of review you'll be fine.
Atlanta Judge Killed, 3 Hurt in Courthouse Shooting
Posted 11:57 AM by Luke
This morning, suspect Brian Nichols, who was in court in Atlanta facing rape charges, took a pistol from a deputy and used that gun to shoot to death that deputy, a court reporter, and Judge Rowland Barnes.

Nichols then fled from the 8th floor of the building and then escaped by carjacking an auto outside the courthouse. At the time of this writing, he is still at large.

My gut reaction is to think: 'Where the hell was the courthouse security?!' It seems unfathomable to me that a person could open fire in a courtroom and then escape from the 8th floor. At this point, every jurisdiction across the country should be reevaluating their courthouse security, as it is imperative that officers of the court be and feel secure.
Thursday, March 10, 2005
Vigilance, bloggers!
Posted 2:47 AM by Joshua Claybourn
Here's a warning to remain skeptical over the links/quotes that Lucas offers below.
Wednesday, March 09, 2005
Chill out, bloggers!
Posted 4:54 PM by Luke
Ellen Weintraub, head of the FEC, wrote this column on CNET today, in response to the story that a judge's ruling coupled with the new campaign finance reform law could lead the FEC to shutting down blogs that endorse candidates.

I appreciate Ms. Weintraub's candor, and hope that she and the FEC can back up her assurances that they will try to enforce CFR as narrowly as possible against blogs, and look at context in a reasonable manner. Afterall, she makes a tremendous point:
For people who worry about the influence of money on politics, the Internet can only be seen as a force for good, for the simple reason that it's generally a very cheap form of communication. As the Internet becomes an increasingly effective political tool, a candidate may not need to raise large sums of cash to run television ads, if she can get her message out cheaply and efficiently over the Internet.

It would be ironic indeed if, in the name of campaign finance reform, we were to try to squelch inexpensive online grassroots political rabble-rousing.

Judge Tinder
Posted 9:46 AM by Joshua Claybourn
U.S. District Court Judge John Tinder, one of my favorite judges and someone who was kind enough to mentor me, has concluded part II of his interview with Underneath Their Robes. You can access part I here, and part II here.
Sunday, March 06, 2005
When The Only Tool You Have Is A Hammer.
Posted 10:00 PM by Brian D.
On Monday, March 7th from noon to 1:30 will be a Same Sex Marriage discussion forum in the Moot Courtroom. SSM is one of the hottest legal and social topics of our time. The discussion will be lead by Indiana Senator Brandt Hershman-Republican and author of the proposed constitutional amendment to ban SSM (SJR7), and an opponent, Indiana Representative (and our own IU-Indy Law Professor) David Orentlicher-Democrat. I have no doubt the discussion panel will be interesting and I hope to attend. However, when advocates of either side discuss the issue of whether or not SSM should exist and how the rights of homosexual couples are or are not affected, I sometimes wonder if we're forgetting a more basic question. Instead of debating the issue of SSM, perhaps we should take a step back and figure out the fundamental issue of what is a marriage?

The complete adage that inspired the above title is "When the only tool you have is a hammer, every problem begins to look like a nail." It represents a tunnel vision that many people have when looking at life's problems. When exposed to a certain mindset or when a person resolves issues in only a certain way, they try to fit every problem or issue into the mental framework they are familiar with. I believe this is a mindset those in the legal community are especially guilty of. We're so used to working with rights, duties, causes of action, the constitutionality of laws, and correcting wrongs that clients suffered that I'm afraid many of us don't always see the big picture or even ask if a big picture exists?

For the issue of SSM, it is often framed in terms of "how can homosexual couples be denied the fundamental right of marriage" or "how may the institutional of marriage be legally protected from being diluted" or something similar. Notice the language often used describes rights and legal protections. I believe the issues of SSM are pigeon-holed into a legal framework as that tool, that hammer, is the one we're most familiar with.

Has marriage evolved into mostly a convenient legal way to grant tax breaks, recognize clear lines of property distribution upon death, or convey other benefits? Or is that legal aspect of marriage only a small part of "the bundle of sticks" that goes into the marriage institution? As a society in general and as lawyers in particular, how should we observe the historical, the sociological, the religious, and the philosophical aspects of marriage? How do we craft those aspects into the issue of SSM? It would be foolish to deny the existence of those other aspects. I believe it is equally foolish to not use those other tools in this marriage project.

History, sociology, religion, and philosophy are subjects many tried to escape from in college. Who wants to figure out how to use those tools? Yet to build a good deck you need more than the hammer. You also need the saw, the tape measure, the drill, the level, and other tools to perform the job properly. When working on a project as important as marriage, perhaps other tools should be used as well.

Perhaps the question we should ask Senator Hershman and Representative Orentlicher isn't why are you for or against SSM, but rather what is the meaning of marriage? Once we have that question resolved, then we can see how SSM should legally fit in, if at all.
Friday, March 04, 2005
1st Amendment Protections Don't Apply To Bloggers
Posted 3:29 PM by Brian D.
Much discussion concerning the "new media" that bloggers are has created interesting legal questions. While most bloggers would not claim themselves to be journalists, others who perform a news gathering and dissemination service online believe the rights and privileges accorded to traditional print and broadcast media reporters should apply to online journalists as well.

In a California case, Superior Court Judge James Kleinberg refused to extend to the Web sites a protection that shields journalists from revealing the names of unidentified sources or turning over unpublished material. Three websites that focus on Apple products published materials concerning an unreleased product code-named "Asteroids." The three websites claim they had insider sources giving them the information that Apple claims is a trade secret. Apple sued the websites to force them to provide the names of the inside sources.

The Electronic Frontier Foundation, a digital rights group representing two Web sites Apple subpoenaed "fought the subpoenas, arguing the online publishers, like their print and broadcast counterparts, frequently rely on confidential sources to report on issues in the public interest."

"Just because Apple does not want these publications to report on its activities does not mean that they are not news publications," Thomas Goldstein, the former dean of Columbia University Graduate School of Journalism wrote in support of the websites.

As a former worker in the information technology industry I would note that I see no difference between a reporter working for a print magazine, the local CBS television affiliate, or an internet website that devoted to providing news information.
Disenfranchisement of the Legislature
Posted 10:57 AM by Alan W. Bauerle
On Wednesday, Indiana House Democrats boycotted the entire session, leaving 132 bills on the floor. Two similar Democratic boycotts have recently taken place in Texas, primarily to prevent redistricting. Democrats also have prevented numerous federal judicial nominees from receiving a full vote in the Congress over the past five years. Rather than face the prospect of losing within the democratic processes of our representative republican form of government, they choose to not allow voting to take place at all. In short, a minority imposes it will upon the majority. Since we elect our Congresspersons to vote in our stead, this disenfranchises every voting citizen in the entire state.

Both parties have done this, of course. Indiana Republicans walked out of session last March when the (then majority-party) Democrats used their majority status to refuse to allow discussion on the gay-marriage amendment. From the linked article: "Dan Parker, executive director of the Indiana Democratic Party, said the boycott was a waste of time and taxpayers’ money. "The people of Indiana deserve better," he said. "House Republicans should set aside divisive politics and get to work on issues that really matter to Hoosiers."

Within each branch of government, veto power, filibusters, and judicial review allow for small minorities or even a single individual to stifle the will of the majority, while still respecting the electorate's representative choices. However, these boycotts intentionally prevent our representatives from doing the work we elected them to do. Should there be sanctions and tangible consequences for those who circumvent the processes of the legislatures and thereby disenfranchise the entire state?
Thursday, March 03, 2005
Can You Pass Me The Salt Please?
Posted 1:48 PM by Brian D.
I always love it when the etiquette luncheon class comes to the school. It makes the atrium smell very good. You should attend one of these before you graduate. Not only do you get a good meal, but you do learn the finer points of business/high class etiquette at a dinner.

As future movers and shakers in American society this stuff does matter. When you’re attempting to get a job that firm will take you to a business lunch or dinner or both. When you’re meeting with clients you’ll want to demonstrate that you are not an open-mouth chomping boorish heathen. Not only is that important to big money clients, but far smaller clients as well. By demonstrating your confidence in a social situation where etiquette matters, you are a more commanding presence worthy of respect. Having the respect of others in your presence is always an important thing. Clients, employers, colleagues, co-workers, and others work better with you when you have their respect.

Learning how to eat ‘properly’ is just one small part of that. So remember that salt and pepper always go together and that you offer to the left before you pass anything to the right.
The Coming Crackdown
Posted 10:54 AM by Joshua Claybourn
When campaign finance reform was passed into law, libertarian-minded folks (and indeed activists of all persuasions) reacted more annoyed than outraged. All of that may soon change as the Federal Election Commission (FEC) starts turning its sights to the Internet, suggesting "the freewheeling days of political blogging and online punditry are over."
In just a few months. . . bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.
That's the lede from CNET after an interview with Bradley Smith, one of the six commissioners at the Federal Election Commission, which is beginning the process of extending campaign finance law to the Internet. Reading Mr. Smith's comments really highlight the absurdity of the laws and how much we've conceded First Amendment rights.

For instance, a blog that praises a politician may be charged a fee based on the percentage of the computer cost and electricity that went to political advocacy. Even a hyperlink can carry enormous implications. If your hyperlink results in $35,000 in contributions, for instance, the FEC would will usually take the view that the blogger contributed $35,000. This sounds extreme, but that's precisely what campaign finance laws are, and it's in line with an advisory opinion in 1998 that concluded that Web sites endorsing or soliciting funds for federal candidates are considered political advertisements and must disclose the full name of the site's creator, state whether the opinions expressed on the site are authorized by the candidate, and report expenditures.

At a minimum, any coordinated activity over the Internet would need to be regulated. A press exemption may help in some respects, but federal law limits the press exemption to a "broadcasting station, newspaper, magazine or other periodical publication." In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision because the "commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the campaign finance law's purposes. The commission could not even muster enough votes among themselves to appeal the decision.

Unless the three commissioners who are satisfied with the district court ruling have a change of heart and decide to appeal, it will take action from Congress to protect some of our most fundamental rights. Otherwise any individual linking to a political candidate, setting up a blog, or sending out mass e-mails may suffer the wrath of this grossly totalitarian law.
Wednesday, March 02, 2005
Federal judge orders Padilla charged or released
Posted 10:29 AM by Luke
U.S. District Judge Henry Floyd, a Bush appointee, has ordered enemy combatant Jose Padilla to either be formerly charged or released-- within 45 days. The Department of Justice is expected to appeal the decision.

The strikes another blow at the Bush administration's strategy of creating what some critics call a "legal black hole" for certain suspected terrorists.

Padilla, a U.S. citizen, has been detained in a military prison without being formerly charged.
Controversial case preview
Posted 9:45 AM by Joshua Claybourn
Today the U.S. Supreme Court hears challenges to public displays of the Ten Commandments. The issue before the Court is whether the public display of religious symbols and ideas on government property amounts to an unconstitutional endorsement of religion in violation of the First Amendment. Experts predict the decision will be handed down in June.

Stone carvings depicting Moses with tablets of the 10 Commandments will be on hand to watch the arguments unfold. Tony Mauro offers a fascinating look at the depictions in the Supreme Court chamber. The Moses engraving only depicts Commandments six through ten, usually considered the more secular ones. Further, Moses' beard obscures some of the words so that instead of reading "Though Shalt Not Steal," it says "Steal," and similarly appears to command viewers to kill and commit adultery. Mauro also notes other figures engraved in the chambers, including the Muslim prophet Mohammed, which would presumably need to be removed as well if the Court rules against the displays.

Ed at Dispatches from the Culture Wars offers a rejoinder from the arguments we often hear in favor of the displays.
"Law school prom"
Posted 1:31 AM by Joshua Claybourn
De Novo has a roundup of various Barrister Ball links from various schools, including this one.
Tuesday, March 01, 2005
Scalia doctrine
Posted 10:39 AM by Joshua Claybourn
The U.S. Supreme Court overruled Stanford v. Kentucky in its decision today in Roper v. Simmons, which declared unconstitutional the death penalty for murders committed before the age of 18. Justice Antonin Scalia dissented, and here's the money quote:
The Court thus proclaims itself sole arbiter of our Nation's moral standards--and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.
You can read the full dissent here, which was joined by the Chief Justice and Justice Thomas. Justice Sandra Day O'Connor dissented separately. Aside from ignoring the voice of the people through representative democracy, and instead relying on their own beliefs as well as international opinion (something the Court won't do with abortion), the Court's opinion also fails to chastise the Supreme Court of Missouri for its failure to follow binding U.S. Supreme Court precedent. Only Justice Scalia addresses it in the final two pages of his dissent.

As seen in the
National Jurist
and on

Indianapolis Help Wanted

August 2003
September 2003
October 2003
November 2003
December 2003
January 2004
February 2004
March 2004
April 2004
May 2004
June 2004
July 2004
August 2004
September 2004
October 2004
November 2004
December 2004
January 2005
February 2005
March 2005
April 2005
May 2005
June 2005
July 2005
August 2005
September 2005
October 2005
November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May 2006
June 2006
July 2006
August 2006
September 2006
November 2006
December 2006
January 2007
February 2007
April 2007
May 2007
March 2010

Weblog Commenting by