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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. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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