Microsoft Word - 1-Masthead - Vol. VIII.doc INDIANA HEALTH LAW REVIEW Volume 8 2010-2011 Editor-in-Chief Melissa L. Stuart, M.S. Executive Managing Editor Bobby A. Courtney, M.A. Executive Production Editors Matthew Derringer Paul Jansen Executive Business Editor Katie Miller Executive Notes Editor Amy E. Halsey Executive Articles Editor Roxana Bell Executive Symposium Editor Dennis Mullen ______________ Note Development Editors Elizabeth Eichholtz Lucas Mlsna Allison Neil DeYoung Vijay Patel Chad Wilson, D.P.T. Articles Editors Jennifer Cooper Kristin McCreary Andrea White Zach Williams Associate Editors John Brown Kelly Earls ______________ Members Erin Albert, MBA, PharmD Alexander Berger Andrew Breck Ashley Brian Lesley Brown Courtney Campbell Kate Cook Brienne Delaney Kyle Fairchild Kyle Johnson Macon Jones Christopher Kacarab Alex Krouse Julie M. Mahomed Amber Malcolm Leeann Simpkins Beth Pirro Chris Serak Kate Shelby Joel D. Swider Ash Lee Talley Amy Tate, M.S.W. Ellen Winternheimer Lance Worland ______________ Faculty Advisors David Orentlicher (Chair) Eleanor D. Kinney (Co-Chair) Robert A. Katz Emily Morris Miriam Murphy (Research Liaison) INDIANA HEALTH LAW REVIEW (ISSN 1549-3199) Content. The Indiana Health Law Review publishes articles submitted by academics, practitioners, and students on the topics of health law and policy. The scope includes bioethics, malpractice liability, managed care, anti-trust, health care organizations, medical-legal research, legal medicine, and food and drug law. The Indiana Health Law Review will be published twice during the 2010-11 academic year. Disclaimer. The ideas, views, opinions, and conclusions expressed in articles appearing in this publication are those of the authors and not those of the Indiana Health Law Review or Indiana University School of Law – Indianapolis. Subscriptions. The current subscription rate is $20.00 for two issues (domestic mailing). 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PROGRAM THE PROGRAM • 24-credit program with a wide range of elective courses • Thesis required • Internship opportunities ONE DEGREE—FIVE TRACKS • American Law for Foreign Lawyers • Health Law, Policy and Bioethics • Intellectual Property Law • International and Comparative Law • International Human Rights Law FEATURING THE HEALTH LAW, POLICY AND BIOETHICS TRACK OF THE LL.M. PROGRAM The William S. and Christine S. Hall Center for Law and Health at IU Law— Indianapolis is widely acknowledged as one of the premier programs of its kind among U.S. law schools. • Gain Practical and Theoretical Knowledge in the Areas of Health Law, Policy and Bioethics • Learn about the Institutions and Structures of Healthcare and how they affect the ethical issues that arise in medical and legal practices • Enhance your opportunities for health law-related employment • Courses offered: Biotechnology Antitrust and Healthcare Bioethics Medical Malpractice APPLICATION DEADLINES Fall Semester: July 15 Spring Semester: October 15 www.indylaw.indiana.edu/llm Indiana University School of Law—Indianapolis 2010-2011 ADMINISTRATIVE OFFICERS AND FACULTY Administrative Officers MICHAEL A. MCROBBIE, President of the University. Ph.D., Australian National University. CHARLES R. BANTZ, Chancellor, Indiana University-Purdue University—Indianapolis. B.A., M.A., University of Minnesota; Ph.D., The Ohio State University. GARY R. ROBERTS, Dean and Gerald L. Bepko Professor of Law. B.A., Bradley University; J.D., Stanford University. PAUL N. COX, Vice Dean and Centennial Professor of Law. B.S., Utah State University; J.D., University of Utah; LL.M., University of Virginia. JAMES P. NEHF, Associate Dean for Graduate Studies and Cleon H. Foust Fellow; Professor of Law and John S. Grimes Fellow. B.A., Knox College; J.D., University of North Carolina Law School. JONNA KANE MACDOUGALL, Assistant Dean for External Affairs and Alumni Relations. B.A., M.A., Indiana University; J.D., Indiana University School of Law—Indianapolis. JOHNNY PRYOR, Assistant Dean for Student Affairs. B.A., Wittenberg University; J.D., Indiana University Maurer School of Law. CHASITY THOMPSON, Assistant Dean for Professional Development. A.S., B.A., Alabama State University; M.B.A., Auburn University; J.D., Indiana University School of Law— Indianapolis. MARK V. WUNDER, Assistant Dean for Development. B.S., J.D., University of Iowa. ELIZABETH ALLINGTON, Director of Communications and Creative Services. B.A., Indiana University; M.A., M. Phil., New York University. TERESA (TERRI) J. CUELLAR, Director of Technology Services. B.S., St. Bonaventure University, New York. JOYCE M. HERTKO, Director of Major Gifts. B.A., Knox College; M.S., Western Illinois University; Ph.D., Indiana University. AMANDA KAMMAN, Director of Fund Raising and Development Services. B.A., Indiana University. PRISCILLA D. KEITH, Director of Research and Projects, Hall Center for Law and Health. B.S., Spelman College; M.S., Atlanta University; J.D., Indiana University School of Law— Indianapolis. PATRICIA K. KINNEY, Director of Admissions. B.S., Purdue University; J.D., Indiana University School of Law—Indianapolis. VIRGINIA MARSCHAND, Director of Administrative and Fiscal Affairs. B.A., M.P.A., Indiana University; J.D., Indiana University School of Law—Indianapolis. SONJA RICE, Egypt Program Director. B.A, Purdue University; J.D., Indiana University School of Law—Indianapolis. JOHN R. SCHAIBLEY, III, Executive Director of The Center for Intellectual Property Law and Innovation. B.A., Purdue University; J.D., Indiana University Maurer School of Law. LAWANDA W. WARD, Director of Pro Bono Program and Public Interest. B.A., Murray State University; M.A., Illinois State University; M.S., Old Dominion University; J.D., Indiana University School of Law—Indianapolis. JACOB MANALOOR, Associate Director for Contracts, Grants and Fund Raising. B.S., Indiana University Kelley School of Business; J.D., Indiana University School of Law— Indianapolis. CARLOTA TOLEDO, Associate Director of Student Affairs. A.B., University of Chicago; J.D., DePaul University College of Law. SUSIE AGNEW, Assistant Director of Student Services. Clark College. WILLIAM J. BAKER, Assistant Director of Technology Services. SUSAN BUSHUE-RUSSELL, Assistant Director of Administration and Finance. A.A.S., Lakeland College; B.S., Eastern Illinois University. KAREN H. MILLER, Assistant Director for Admissions. Midway College. LISA SCHRAGE, Assistant Director for Donor Relations. B.S., Marian College. Faculty CYNTHIA M. ADAMS, Clinical Professor of Law and Co-Director of the Latin American Law Program. B.A., Kentucky Wesleyan College; J.D., Indiana University School of Law—Indianapolis. JUDITH FORD ANSPACH, Professor of Law and Director, Ruth Lilly Law Library. B.S., M.L.S., Kent State University; J.D., Mississippi College School of Law. CYNTHIA BAKER, Clinical Associate Professor of Law and Director, Program on Law and State Government. B.A., J.D., Valparaiso University. GERALD L. BEPKO, Indiana University-Purdue University—Indianapolis Chancellor Emeritus, Indiana University Trustee Professor and Professor of Law. B.S., Northern Illinois University; J.D., ITT/Chicago-Kent College of Law; LL.M., Yale Law School. SHAWN BOYNE, Associate Professor of Law and Dean’s Fellow. B.A., Cornell University; M.B.A., University of Minnesota, J.D., University of Southern California’s Gould School of Law, M.A., University of Wisconsin, L.L.M., Justus-Liebig-Universtat. KAREN E. BRAVO, Professor of Law; John S. Grimes Fellow and Dean’s Fellow. B.A., The University of the West Indies; J.D., Columbia University School of Law; LL.M., New York University School of Law. ROBERT BROOKINS, Professor of Law. B.S., University of South Florida; J.D., Ph.D., Cornell University. KENNETH D. CHESTEK, Clinical Associate Professor of Law. B.A., Pennsylvania State University; J.D., University of Pittsburgh School of Law. DANIEL H. COLE, R. Bruce Townsend Professor of Law. A.B., Occidental College; A.M., University of Chicago; J.D., Lewis and Clark Law School; J.S.M., J.S.D., Stanford Law School. JEFFREY O. COOPER, Associate Professor of Law. A.B., Harvard University; J.D., University of Pennsylvania Law School. ERIC DANNENMAIER, Associate Professor of Law and Dean’s Fellow. B.A., Drury College; J.D., Boston University; LL.M., Columbia University; M. St., Oxford University. JAMES D. DIMITRI, Clinical Professor of Law. B.S., Indiana University; J.D., Valparaiso University School of Law. JENNIFER A. DROBAC, Professor of Law and Director, Central and Eastern European Law Summer Program. B.A., M.A., Stanford University; J.D., J.S.D., Stanford Law School. GEORGE E. EDWARDS, Carl M. Gray Professor of Law; Faculty Advisor to the LL.M. Track in International Human Rights Law (term ending, Spring 2011); Director, Program in International Human Rights Law and John S. Grimes Fellow. B.A., North Carolina State University; J.D., Harvard Law School. FRANK EMMERT, John S. Grimes Professor of Law and Executive Director, Center for International and Comparative Law. Erstes Juristisches Staatsexamen (J.D.), University of Munich Law School; LL.M., The University of Michigan Law School; Ph.D., University of Maastricht; Diploma, European University Institute. NICHOLAS GEORGAKOPOULOS, Harold R. Woodard Professor of Law. Ptyhion Nomikis, Athens University School of Law; LL.M., S.J.D., Harvard Law School. CARRIE HAGAN, Clinical Associate Professor of Law. B.A., University of Kansas; J.D., University of Cincinnati, College of Law. JOHN LAWRENCE HILL, Professor of Law; Adjunct Professor of Philosophy and John S. Grimes Fellow. B.A., Northern Illinois University; J.D., Ph.D., Georgetown University. LINDA KELLY HILL, M. Dale Palmer Professor of Law. B.A., J.D., University of Virginia. MAX HUFFMAN, Associate Professor of Law and Dean’s Fellow. B.A., Cornell University, J.D., University of Chicago College of Law. LAWRENCE A. JEGEN, III, Thomas F. Sheehan Professor of Tax Law and Policy. A.B., Beloit College; J.D., M.B.A., The University of Michigan; LL.M., New York University School of Law. ROBERT A. KATZ, Professor of Law and John S. Grimes Fellow. A.B., Harvard College; J.D., University of Chicago Law School. ELEANOR D. KINNEY, Hall Render Professor of Law, Co-Director of the William S. and Christine S. Hall Center for Law and Health. B.A., Duke University; M.A., University of Chicago; J.D., Duke University School of Law; M.P.H., University of North Carolina. ANDREW R. KLEIN, Paul E. Beam Professor of Law; Chief of Staff, Office of the Chancellor of Indiana University-Purdue University—Indianapolis. B.A., University of Wisconsin; J.D., Emory University School of Law. NORMAN LEFSTEIN, Professor of Law and Dean Emeritus. LL.B., University of Illinois College of Law; LL.M., Georgetown University Law School. MARÍA PABÓN LÓPEZ, Professor of Law and Dean’s Fellow. B.A., Princeton University; J.D., University of Pennsylvania Law School. GERARD N. MAGLIOCCA, Professor of Law; Co-Director, Chinese Law Summer Program and John S. Grimes Fellow. B.A., Stanford University; J.D., Yale Law School. ALLISON MARTIN, Clinical Associate Professor of Law. B.S., J.D., University of Illinois. DEBORAH MCGREGOR, Clinical Professor of Law and Assistant Director of Legal Analysis, Research and Communication. B.A., University of Evansville; J.D., Georgetown University Law School. SUSANAH M. MEAD, Professor of Law. B.A., Smith College; J.D., Indiana University School of Law—Indianapolis. EMILY MORRIS, Associate Professor of Law and Dean’s Fellow. A.B., Harvard University, J.D., University of Michigan Law School. NOVELLA NEDEFF, Clinical Associate Professor of Law. B.A., J.D., Indiana University. DAVID ORENTLICHER, Samuel R. Rosen Professor of Law and Co-Director of the William S. and Christine S. Hall Center for Law and Health. A.B., Brandeis University; J.D., M.D., Harvard College. JOANNE ORR, Clinical Professor of Law. B.S., Indiana State University; J.D., California Western School of Law. ANTONY PAGE, Associate Professor of Law and Dean’s Fellow. B. Comm., McGill University; M.B.A., Simon Fraser University; J.D., Stanford Law School. MICHAEL J. PITTS, Associate Professor of Law; Dean’s Fellow and John S. Grimes Fellow. B.S.J., Northwestern University; J.D., Georgetown University Law Center. PETER A. PRESCOTT, Associate Professor of Law. B.A., Augustana College; M.S., The University of Chicago; M.P.A., The University of Texas at Austin; J.D., The University of Houston Law Center. FRAN QUIGLEY, Visiting Professor of Law. B.A., Hanover College; M.A., Indiana University; J.D., Indiana University School of Law—Indianapolis. FLORENCE WAGMAN ROISMAN, William F. Harvey Professor of Law. B.A., University of Connecticut; LL.B., Harvard Law School. JOAN M. RUHTENBERG, Professor of Law and Director of Legal Analysis, Research and Communication. B.A., Mississippi University for Women; J.D., Indiana University School of Law—Indianapolis. JOEL M. SCHUMM, Clinical Professor of Law and Director, Judicial Externship Program. B.A., Ohio Wesleyan University; M.A., University of Cincinnati; J.D., Indiana University School of Law—Indianapolis. CARLTON M. WATERHOUSE, Associate Professor of Law and Dean’s Fellow. B.S., Pennsylvania State University; J.D., Howard University School of Law; MT.S., Emory University, Chandler School of Theology; Ph.D., Emory University. FRANCES WATSON, Clinical Professor of Law. B.S., Ball State University; J.D., Indiana University School of Law—Indianapolis. LLOYD T. WILSON, JR., Professor of Law and Co-Director, Chinese Law Summer Program. B.A., Wabash College; M.A., Duke University; J.D., Indiana University School of Law—Bloomington. MARY T. WOLF, Clinical Professor of Law and Director of Clinical Programs and Externships. B.A., Saint Xavier College; J.D., University of Iowa College of Law. R. GEORGE WRIGHT, Lawrence A. Jegen III Professor of Law. A.B., University of Virginia; Ph.D., Indiana University; J.D., Indiana University School of Law—Indianapolis. Emeriti Faculty THOMAS B. ALLINGTON, Professor of Law Emeritus. B.S., J.D., University of Nebraska; LL.M., New York University School of Law. EDWARD P. ARCHER, Professor of Law Emeritus. B.M.E., Renesselaer Polytechnic Institute; J.D., LL.M., Georgetown University Law School. JAMES F. BAILEY, III, Professor of Law Emeritus and Director of the Law Library Emeritus. A.B., J.D., M.A.L.S., The University of Michigan. CLYDE HARRISON CROCKETT, Professor of Law Emeritus. A.B., J.D., University of Texas; LL.M., University of London (The London School of Economics and Political Science). DEBRA A. FALENDER, Professor of Law Emerita. A.B., Mount Holyoke College; J.D., Indiana University School of Law—Indianapolis. DAVID A. FUNK, Professor of Law Emeritus. A.B., College of Wooster; J.D., Case Western Reserve University School of Law; M.A., The Ohio State University; LL.M., Case Western Reserve University; LL.M., Columbia Law School. PAUL J. GALANTI, Professor of Law Emeritus. A.B., Bowdoin College; J.D., University of Chicago Law School. HELEN P. GARFIELD, Professor of Law Emerita. B.S.J., Northwestern University; J.D., University of Colorado School of Law. HAROLD GREENBERG, Professor of Law Emeritus. A.B., Temple University; J.D., University of Pennsylvania Law School. JEFFREY W. GROVE, Professor of Law Emeritus. A.B., Juniata College; J.D., George Washington University Law School. WILLIAM F. HARVEY, Carl M. Gray Professor of Law & Advocacy Emeritus. A.B., University of Missouri; J.D., LL.M., Georgetown University Law School. W. WILLIAM HODES, Professor of Law Emeritus, A.B., Harvard College; J.D., Rutgers University School of Law—Newark. WILLIAM ANDREW KERR, Professor of Law Emeritus. A.B., West University; B.S., Duke University; J.D., LL.M., Harvard Law School. WILLIAM E. MARSH, Professor of Law Emeritus. B.S., J.D., University of Nebraska. RONALD W. POLSTON, Professor of Law Emeritus. B.S., Eastern Illinois University; LL.B., University of Illinois College of Law. KENNETH M. STROUD, Professor of Law Emeritus. A.B., J.D., Indiana University— Bloomington. JAMES W. TORKE, Carl M. Gray Professor of Law Emeritus. B.S., J.D., University of Wisconsin. JAMES PATRICK WHITE, Professor of Law Emeritus. A.B., University of Iowa; J.D., LL.M., George Washington University Law School. LAWRENCE P. WILKINS, William R. Neale Professor of Law Emeritus. B.A., The Ohio State University; J.D., Capitol University Law School; LL.M., University of Texas School of Law. Law Library Faculty JUDITH FORD ANSPACH, Professor of Law and Director, Ruth Lilly Law Library. B.S., M.L.S., Kent State University; J.D., Mississippi College School of Law. DEBRA DENSLAW, Reference Librarian. B.A., Franklin College; M.S., University of Illinois, Urbana-Champaign; J.D., Valparaiso School of Law. RICHARD HUMPHREY, Reference Librarian. A.A., Brewton-Parker Junior College; B.A., Georgia Southwestern College; M.L.S., University of Kentucky. WENDELL E. JOHNTING, Assistant Director for Technical Services. A.B., Taylor University; M.L.S., Indiana University. CATHERINE LEMMER, Head of Information Services. B.A., Lawrence University; J.D., University of Wisconsin; M.S., University of Illinois. CHRIS E. LONG, Cataloging Librarian. B.A., Indiana University; M.A., Indiana University; M.L.S., Indiana University. STEVEN R. MILLER, Reference Librarian. B.S., Lebanon Valley College of Pennsylvania; M.A., Dominican University; M.S., Northwestern University; J.D., The John Marshall Law School. MAHNAZ K. MOSHFEGH, Serials/Acquisitions Librarian. B.A., National University of Iran; M.S., Tehran University; M.A., Ball State University; M.L.S., Ph.D., Indiana University. MIRIAM A. MURPHY, Associate Director. B.A., Purdue University; J.D., M.L.S., Indiana University—Bloomington. KIYOSHI OTSU, Automated Services and Media Librarian. A.A., Parkland College; A.B., M.S., C.A.S., University of Illinois. INDIANA HEALTH LAW REVIEW Volume 8 Issue 2 TABLE OF CONTENTS The Association of American Law Schools 2011 Annual Meeting: Section on Torts and Compensation Schemes Symposium Vaccines and Drugs: A Brave New Tort World .............Catherine M. Sharkey 259 The Vaccine No-Fault Act: An Overview ............................... Robert L. Rabin 267 Administrative Compensation for Pharmaceutical-and Vaccine-Related Injuries ......................................................James R. Copland 275 The Case Against Preemption: Vaccines & Uncertainty ............ Mary J. Davis 291 The Case For Preemption: Why the U.S. Supreme Court and the Administration are Wrong to Curtail Implied Conflict Preemption .........................................................Malcolm E. Wheeler 317 AALS Torts and Compensation Systems Section William L. Prosser Award Bestowed Upon Guido Calabresi........................Catherine M. Sharkey 331 Comments by the Honorable Guido Calabresi, U.S. Court of Appeals, 2nd Circuit ......................Honorable Guido Calabresi 333 ARTICLE Perspective on Economic Critiques of Disability Law: The Multifaceted Federal Role in Balancing Equity and Efficiency............... Elizabeth Burleson 335 NOTES Hospital Tax-Exemption and the Community Benefit Standard: Considerations for Future Policymaking ............................Bobby A. Courtney 365 Focusing on Fraud: The Federal Government Expands Its Use of the False Claims Act to Police Off-Label Pharmaceutical Promotion.................................................................. Kristin McCreary Eichel 399 Nanotechnology: How Voluntary Regulatory Programs Can Both Ease Public Apprehensions and Increase Innovation in the Midst of Uncertain Federal Regulations ...................................................... Katie Miller 435 Stem Cell Based Treatments and Novel Considerations for Conscience Clause Legislation..................................................... Lucas Mlsna 471 Autism Insurance Reform: A Comparison of State Initiatives....Melissa Stuart 497 2011