The Indiana Law Journal & The Indiana Law Journal Supplement - Articles - Volume 82, Issue 2

Not Just “Every Man”: Revisiting the Journalist’s Privilege Against Compelled Disclosure of Confidential Sources

no@spam.com (Jamie M. Porter) — Thu, 04 Oct 2007 21:22:37 EDT

The press has long relied on confidential sources to inform the public about the issues of the day, particularly those that are "highly charged." Without the ability to grant confidentiality to sources, journalists would be stymied in their investigative efforts and in gaining access to information that the public would not otherwise be privy to. Yet in recent years, the press's newsgathering ability has come under attack by federal prosecutors seeking compelled disclosure of confidential sources, particularly in the grand jury setting. This Note thus begins with the premise that the privilege of journalists against compelled disclosure of confidential sources must be strengthened. Doing so will enable the press to adequately perform its intended function, one that is vital to the health of our democracy: keeping the public informed.

More specifically, this Note traces the legal foundations on which the journalist's privilege is based, beginning with the Supreme Court's seminal holding in Branzburg v. Hayes, which precludes journalists from using the First Amendment as a basis for protecting confidential sources. However, there exist two alternatives for such protection: Federal Rule of Evidence 501 and statutory law. This Note examines both possibilities and concludes that a federal shield law is the proper means for providing journalists with protection against compelled disclosure of confidential sources. A thoughtfully crafted statute will both adequately balance the journalist's privilege against the competing interest in the administration of justice, while also promoting the same democratic values that are inherent in the First Amendment.

Simon Says: Time for a New Approach to Choice-of-Law Questions in Indiana

no@spam.com (Eric J. McKeown) — Thu, 04 Oct 2007 21:19:52 EDT

In Simon v. United States, the Indiana Supreme Court was asked to answer certified questions from the United States Court of Appeals for the Third Circuit pertaining to the application of Indiana choice-of-law doctrine to a dispute under the Federal Tort Claims Act.Although Simon presented the court with an opportunity to clarify its choice-of-law doctrine, the court failed to take advantage of this promising opportunity.The court emphatically rejected central tenets of modern choice-of-law doctrine, including governmental interest analysis, without offering any viable alternative for evaluating the relative importance of state contacts in resolving choice-of-law questions.In addition, the court misapplied the so-called "conduct-regulating exception" to determine that Indiana law should govern all substantive issues in the case.The court's puzzling rejection of modern doctrine leaves Indiana choice-of-law doctrine without a coherent methodology for performing the central function of any choice-of-law approach:determining the relative importance of state contacts in a dispute involving connections to multiple states.

Constitutional Challenges to Indiana’s Third-Party Custody Statutes

no@spam.com (Kristen H. Fowler) — Thu, 04 Oct 2007 21:07:24 EDT

As American families change, individuals other than parents often fulfill traditional parenting roles. To assist these third-party caregivers, Indiana enacted statutes which allow for third-party custody and visitation. These statutes—though intended for good—allow the possibility of third-party infringement on the liberty interest of parents in the care, custody, and control of their children. This Note examines the development of the parental liberty interest, discusses how Indiana's statutes threaten the parental interest, and proposes solutions that would protect the parental interest while providing third parties the ability to obtain child custody and visitation when necessary.

Independent Adjudication, Political Process, and the State of Labor-Management Relations: The Role of the National Labor Relations Board

no@spam.com (William B. Gould IV) — Thu, 04 Oct 2007 20:36:05 EDT

This Article is based upon the inaugural William R. Stewart Lecture given at Indiana University School of Law–Bloomington on October 31, 2006.

Introduction to the Stewart Lecture Series

no@spam.com (Lauren K. Robel) — Thu, 04 Oct 2007 20:10:24 EDT

Introduction to the inaugural William R. Stewart Lecture on Labor and Employment Law. The lecture is the first in an annual series in honor of William R. Stewart, a distinguished alumnus of Indiana University School of Law-Bloomington.

Memorial to William R. Stewart

no@spam.com (William B. Gould IV) — Thu, 04 Oct 2007 19:58:44 EDT

For the many who knew him or had some contact with him—and most especially for those many who loved him—William Rufus Stewart incorporated many characteristics in that multidimensional personality of his. Two features override all of them—his commitment to excellence—this is what prompted President Bill Clinton to characterize his contributions to the NLRB as "unparalleled"—and his compassion for humanity and life.

Rethinking Criminal Corporate Liability

no@spam.com (Andrew Weissman with David Newman) — Wed, 03 Oct 2007 22:01:29 EDT

Under current federal law a corporation, no matter how large or small, is criminally liable if a member of the organization commits a crime at least in part with the motive to benefit the company.This Article challenges that doctrine and contends that where it seeks to charge a corporation as a defendant, the government should bear the burden of establishing as an additional element that the corporation failed to have reasonably effective policies and procedures to prevent the conduct.This Article demonstrates, though an examination of post-Enron deferred prosecution agreements, that the government has consistently sought corporate reforms regarding internal compliance measures that can best prevent and detect the crimes engaged in by company employees.Those agreements provide the measure of what the government views as appropriate corporate behavior and provide a template for corporations seeking to implement internal mechanisms that will satisfy law enforcement.Far from giving corporations a shield to commit fraud, a system that ties criminal liability to the lack of an effective compliance program will do what the practical limitations on a prosecutor's time and resources could never permit – incentivize boardrooms around the country to devise, implement, and monitor compliance measures.

Reconciling the Harvard and Chicago Schools: A New Antitrust Approach For the 21st Century

no@spam.com (Thomas A. Piraino, Jr.) — Wed, 03 Oct 2007 21:58:34 EDT

For the past forty years, the economic theories of the "Harvard" and "Chicago" Schools have battled for dominance in the federal courts and antitrust enforcement agencies. In its 1999 decision in California Dental Assoc. v. FTC, 526 U.S. 759 (1999), the Supreme Court cited Mr. Piraino in recognizing a new antitrust approach that holds the promise for reconciling the opposing theories of the Harvard and Chicago Schools. Building on the Supreme Court's decision in California Dental, this Article proposes a new, comprehensive approach for the antitrust analysis of all the principal types of competitive conduct engaged in by American business.

Of Rules and Standards: Reconciling Statutory Limitations On "Arising Under" Jurisdiction

no@spam.com (Richard D. Freer) — Wed, 03 Oct 2007 21:47:45 EDT

Article III authorizes and the Judicial Code grants federal subject matter jurisdiction over civil cases "arising under" federal law.The Supreme Court has interpreted these words differently, however, in their constitutional and statutory contexts. While the constitutional text is read broadly, the Court has imposed three limitations on the same words in the statutory grants of federal question jurisdiction:(1) the "well-pleaded complaint" rule, (2) a requirement that the federal issues be sufficiently "direct" or "central" to the dispute to justify access to the federal courts and (3) a requirement that the federal assertion be "substantial." Our primary focus is the second limitation – the centrality requirement – which has long vexed courts and commentators.In Grable & Sons Metal Products v. Darue Engineering, the Court embraces the broader view of federal question jurisdiction and finally provides meaningful guidance for assessing when state-created claims may invoke federal question jurisdiction.

In my opinion, the Court does this by implicitly recognizing the difference between a rule and a standard.A rule affords the decision-maker no discretion, but cabins its inquiry to whether a given set of facts exists. A standard, in contrast, affords the decision-maker greater discretion by prescribing a series of relevant factors to be weighed in view of a policy goal. In illuminating the difference, we benefit by juxtaposing the centrality requirement with the well-pleaded complaint rule.The latter performs a task well-suited to a rule – it asks a question that can be answered "yes" or "no."The centrality requirement, however, asks a fundamentally different kind of question – essentially "how much" federal content is required to invoke jurisdiction. This sort of question cries out for assessment by a less determinate standard, which requires the court to balance federal and state interests and to consider, among other things, litigation reality – that is, what issues must be resolved in adjudicating the underlying dispute.

On Virtual Worlds: Copyright and Contract Law at the Dawn of the Virtual Age

no@spam.com (Erez Reuveni) — Wed, 03 Oct 2007 21:44:29 EDT

In this article, the author examines the use of copyright law on the internet – specifically in "virtual worlds" such as those in online games such as World of Warcraft and EverQuest. These games have hundreds of thousands of players world-wide, and many players "create" virtual goods, artwork, and literary pieces while in the "world" of the games.

The author argues that because of the huge economies of these popular games, courts will very soon have to address the application of copyright law to the things that players create while in the virtual environments. The author ultimately concludes that existing copyright law must be modified in order to protect more fully the interests both of the game creators and of the game players.