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New members of the American Law Institute bring energy and diversity

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Reflecting on a prestigious recognition he had just received, Indiana Supreme Court Justice Robert Rucker sat in the court’s conference room and talked about what might have been.

As a young man at Indiana University Northwest, he had plans to become a physician. He was studying pre-med and regularly traveling to Chicago to sit in on a few osteopathic medicine classes.

But a minor legal issue arose that sent him seeking advice. He did not know any attorneys personally so he drove around his hometown of Gary, randomly stopped at a law office, went in and asked to speak to a lawyer.

“To make a long story short, I ran into this lawyer who just seemed to know everything about everything,” Rucker remembered. “He was active in the community and he seemed to be on top of every compelling issue of the time. … I just said, ‘My god, when I grow up I want to be just like you.’”

Institute-15col.jpg Kathleen DeLaney, Indiana Justice Robert Rucker (center) and Alan Mills say they are honored to be members of the American Law Institute. (IL Photo/Eric Learned)

The next day, Rucker began his legal career. He went to the registrar’s office, changed his major and figured out how soon he could graduate because he was anxious to get to law school.

“He was just that impressive,” Rucker said of that attorney, Alton Gill Jr., who became a good friend and mentor.

Rucker went on to build an impressive career of his own, working his way up from private practice to the Supreme Court. His latest accomplishment has put him in the company of prestigious scholars, jurists and attorneys and will allow him to use his experience and knowledge to influence legal thinking.

The former pre-med student has just been elected to the American Law Institute. Rucker joins Alan Mills, partner at Barnes & Thornburg LLP, and Kathleen DeLaney, managing partner at DeLaney & DeLaney LLC, as the newest members from Indiana.

Research, writing and Restatements

The three in the Hoosier delegation are a part of the most recent ALI class of 61 professionals hailing from 26 states. Rucker, DeLaney and Mills say they are honored to have been elected to the organization and look forward to making a contribution.

A primary way they may participate is by helping to research and write the Restatements of the Law. These documents are compiled by members of the institute and regularly used by judges and attorneys to gain insight into laws and how those laws are applied around the country.

Retired Justice Frank Sullivan highlighted the importance of the Restatements in a 2013 lecture he gave at Valparaiso Law School. In particular, the Restatements can provide guidance when the bench is considering overruling precedent.

“But mindful of our separation of powers constraints, the fact that precedent may be legitimately overruled does not give a judge license to adopt a personal political or policy preference instead,” Sullivan said. “This is why Restatements are so helpful, presenting to the court a legal rule based on the careful study by lawyers, judges and professors of the law as it presently stands.”

However, the Restatements have been criticized over the years. They have been deemed too insular and failing to call upon other disciplines for input; too mired in old ways of legal thought and not reflecting the contemporary thinking and approaches of today’s practicing attorneys.

Indiana Court of Appeals Judge Margret Robb acknowledged the criticism but said the Restatements are still valuable. They try to give a summary of where the law is and point out different aspects that have been established by caselaw.

“It’s a starting point, it’s a help,” Robb said.

Like many lawyers, DeLaney was introduced to the Restatements as a law student. She continued to draw upon their experience when she was drafting jury instructions as a clerk for Judge David Hamilton when he served on the U.S. District Court for the Southern District of Indiana.

Since then she has continued that work through her appointment to a 7th Circuit Court of Appeals subcommittee on pattern jury instructions. DeLaney sees her work, along with her experience as a practitioner, as good preparation for what she is hoping to do at ALI.

In particular, she believes the institute can provide a benefit to the general public by making the law easier to comprehend and more approachable.

“Clear and concise opinion writing from judges can benefit that process,” DeLaney said. “Similarly, if we can make the Restatements an accessible resource so that people can understand them when they read them and they’re not full of arcane legalese, I think those are good aspirational goals to have which could have the added benefit of making the legal process more accessible and understandable.”

Mills, too, sees the ALI as in a position to give people the feeling the law is there to protect their interests.

“Some people are skeptical about lawyers and the law,” Mills said. “This is one area where we can tramp down on that skepticism and do things that are exceptional.”

The son of a military officer, Mills considered a career in academia but chose to be a practicing lawyer instead. He exhibits a scholar’s interest in the law, watching it develop and change to meet the current challenges of society, and he applauds ALI bringing together academics and practitioners to get different perspectives on the topics being discussed.

Practical applications

The Restatements can give an overview of current law, point out the trends and provide guidance – especially to judges. Restatements are extremely helpful, Rucker said, but they do not have to be adopted by the courts.

Indiana judges have used the Restatements to gain insight when considering an issue of first impression or when revisiting settled law. Rucker pointed to opinions by the Supreme Court which accepted the ideas put forth in a particular Restatement, including Burrell v. Meads, which adopted Restatement (Second) of Torts Section 332.

He pointed to his 2013 opinion for Santelli v. Rahmatullah as an example in which the court rejected the Restatement (Third) of Tort Section 14.

“It’s not so much that it’s a standard that we have to adopt because everybody else does or a standard that is the most popular, but at least it gives us an idea of what are people thinking, what are we missing,” Rucker explained. “Maybe we are not missing anything, maybe we have the better view … .”

Even within the ALI, the Restatements can spark dissent. Carmel attorney and ALI life member John Vargo has stood up at the institute’s meetings and has written letters to offer his advice – and sometimes an opposing view.

“I’m the perfect example of someone who says, ‘You didn’t do that right,’” Vargo said. “They allow that.”

His opposition to a provision in the third edition of the Restatement on torts prompted him to spend nights and weekends for more than two years writing what may be the longest law review article (462 pages) expressing his thoughts on product liability.

Vargo emphasized he just disagreed with one section of the Restatement and overall he still supports the ALI.

“It is a great institution,” he said.

Mirroring society

One recent rainy morning, DeLaney, Mills and Rucker gathered in the Indiana Supreme Court library to have their photo taken. They happily greeted one another and easily conversed as if they were old friends. And as they smiled for the camera, they represented diversity in backgrounds, legal careers, race and gender.

The trio shied away from reading too much into their diversity, but others see their differences as having a positive benefit for the institute and for Indiana.

“I think it’s important in everything we do,” Robb said of diversity. “People say we believe in a justice system that looks like them. If the Restatements are trying to say what the law is, or to some extent be the bellwether of where the law is moving, then we need old white men, minorities and women.”•
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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