Indiana Law Review Indiana law Review Volume 29 No. 1 1995 ARTICLES "By What Right?": The Sources and Limits of Federal Court and Congressional Jurisdiction Over Matters "Touching Religion" Robert A. Destro Punitive Damages Are a Necessary Remedy in Broker-Customer Securities Arbitration Cases Margo E. K. Reder NOTES The Link Between Private and Public Single-Sex Colleges: Will Wellesley Stand or Fall with the Citadel? Karla Cooper-Boggs Regulation of Construction Site Stormwater Runoff: We Can Do Better Than This David L. Hatchett Shifting Burdens and the Americans With Disabilities Act: Why McDonnell Douglas Should Apply to the ADA Timothy A. Ogden Title L Protecting the Obese Worker? Jennifer Shoup Infrared Imaging Technology: Threatening to See Through the Fourth Amendment Jeffrey J. Skelton CareerMove No doubt you plan to start a successful legal career soon, so here's a tip: Start reading Law Week now. While you're still in law school. Why? 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Skelton Nicole L. Smith Charles Todd, Jr. Kenneth Waite Daylon Welliver Editorial Assistant Chris Paynter Faculty Advisor Paul J. Galanti Indiana University School of La>v—Indianapolis 1994-95 ADMINISTRATIVE OFFICERS AND FACULTY Administrative Officers Myles Brand, President of the University. Ph.D. in Philosophy, University of Rochester (New York). Gerald L. Bepko, Vice-President for Long-Range Planning, Indiana University; Chancellor, Indiana University-Purdue University at Indianapolis and Professor of Law. J.D., IIT/Chicago-Kent College of Law; LL.M,, Yale University. Norman Lefstein, Dean and Professor of Law. LL.B., University of Illinois; LL.M., Georgetown University. Thomas B. Allington, Associate Dean for Academic Affairs and Professor of Law. B.S., J.D., University of Nebraska; LL.M., New York University. JoNNA M. Kane, Assistant Dean for External Affairs. J.D., Indiana University—Indianapolis. Rachel B. Kearney, Assistant Dean for Student Affairs. J.D., New York University School of Law. Joni D. Thompson, Assistant Dean for Development. M.A., Ball State University. Angela M. Espada, Assistant Dean for Admissions. J.D., Indiana University—Bloomington. Karen Marks, Director of Career Services. B.S., St. Joseph's College; M.S., Illinois State University. Faculty Thomas B. Allington, Associate Dean and Professor of Law. B.S., J.D., University of Nebraska; LL.M., New York University. Edward P. Archer, Professor of Law. B.M.E., Rensselaer Polytechnic Institute; J.D., LL.M., Georgetown University. James F. Bailey, III, Professor of Law and Director ofLaw Library. A.B., J.D., M.A.L.S., University of Michigan. Gerald L. Bepko, Vice President for Long-Range Planning, Chancellor, and Professor of Law. B.S., Northern Illinois University; J.D., IIT/Chicago-Kent College of Law; LL.M., Yale University. Robert Brookins, Associate Professor ofLaw. B.S., University of South Florida; J.D., Ph.D., Cornell University. Daniel H. Cole, Associate Professor of Law. A.B., Occidental College; A.M., University of Chicago; J.D., Lewis and Clark College; J.S.M., Stanford Law School. Paul N. Cox, Professor ofLaw. B.S., Utah State University; J.D., University of Utah; LL.M., University of Virginia. Kenneth D. Crews, Associate Professor ofLaw and Library and Information Science. B.A., Northwestern University; J.D., Washington University; M.L.S., University of California, Los Angeles; Ph.D., University of California, Los Angeles. Clyde Harrison Crockett, Professor of Law. 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. A.B., Mount Holyoke College; J.D., Indiana University—Indianapolis , David A. Funk, Professor of Law. A.B., College of Wooster; J.D., Case Western Reserve University; M.A., The Ohio State University; LL.M., Case Western Reserve Univer- sity; LL.M., Columbia University. Paul J. 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B.A., Smith College; J.D., Indiana University — Indianapolis. Mary H. Mitchell, Professor of Law. A.B., Butler University; J.D., Cornell Law School. James P. Nehf, Professor of Law. B.A., Knox College; J.D., University of North Carolina. Thomas R. Newby, Lecturer in Law. A.B., J.D., Indiana University—Bloomington. Leslye a. Obiora, Assistant Professor of Law. LL.B., University of Nigeria; LL.M., Yale Law School; J.S.D. Candidate, Stanford Law School. David Orentlicher, Associate Professor ofLaw. A.B., Brandeis University; J.D., M.D., Harvard College. David R. Papke, Professor of Law and American Studies. A.B., Harvard College; J.D., Yale University; M.A. in American Studies, Yale University; Ph.D. in American Studies, The University of Michigan. H. Kathleen Patchel, Associate Professor ofLaw. A.B., Huntington College; J.D., University of North Carolina; LL.M., Yale University. Fran Quigley, Visiting Assistant Professor of Law. B.A., Hanover College; M.A., Indiana University—Bloomington; J.D., Indiana University—Indianapolis. Joan M. Ruhtenberg, Director of Legal Writing. B.A., Mississippi University for Women; J.D., Indiana University—Indianapolis. Andrew T. Solomon, Lecturer in Law. A.B., University of Michigan; J.D., Boston University. June O. Starr, Associate Professor of Law. B.A., Smith College; M.A., Columbia Univer- sity; Ph.D., University of CaHfornia, Berkeley; M.S.L., Yale University; J.D., Stanford Law School. Kenneth M. Stroud, Professor of Law. A.B., J.D., Indiana University—Bloomington. James W. Torke, Professor of Law. B.S., J.D., University of Wisconsin. JoAiNfNE Orr Van Pelt, Clinical Instructor. J.D., California Western. James Patrick White, Professor ofLaw and Consultant on Legal Education to the American Bar Association. A.B., University of Iowa; J.D., LL.M., George Washington University. Lawrence P. Wilkins, Professor of Law. B.A., The Ohio State University; J.D., Capital University Law School; LL.M., University of Texas. Mary T. Wolf, Director of Clinical Programs. B.A., Saint Xavier College; J.D., University of Iowa. Emeriti Agnes P. Barrett, Associate Professor Emerita. B.S., J.D., Indiana University. Cleon H. Foust, Professor Emeritus. A.B., Wabash College; J.D., University of Arizona. Helen P. Garfield. Professor Emerita. B.S.J.. Northwestern University; J.D., University of Colorado. Melvin C. Poland, Cleon H. Foust Professor ofLaw Emeritus. B.S., Kansas State University; LL.B., Washburn University; LL.M., University of Michigan. Ronald W. Polston, Professor Emeritus. B.S., Eastern Illinois University; LL.B., University of Illinois. Law Library Faculty James F. Bailey, III, Professor and Director ofLaw Library. A.B., J.D., M.A.L.S., University of Michigan. MiNDE C. Browning, Assistant Directorfor Readers' Services. 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Indiana Law Review Volume 29 1995 Number 1 Copyright © 1995 by the Trustees of Indiana University TABLE OF CONTENTS ARTICLES "By What Right?": The Sources and Limits of Federal Court and Congressional Jurisdiction Over Matters "Touching Religion" Robert A. Destro 1 Punitive Damages Are a Necessary Remedy in Broker-Customer Securities Arbitration Cases Margo E. K. Reder 105 NOTES The Link Between Private and Public Single-Sex Colleges: Will Wellesley Stand or Fall with the Citadel? Karla Cooper-Boggs 131 Regulation of Construction Site Stormwater Runoff: We Can Do Better Than This David L. Hatchett 153 Shifting Burdens and the Americans With Disabilities Act: Why McDonnell Douglas Should Apply to the ADA Timothy A. Ogden 179 Title I: Protecting the Obese Worker? Jennifer Shoup 207 Infrared Imaging Technology: Threatening to See Through the Fourth Amendment Jeffrey J. Skelton 23 1 Volume 29 Number 1 The INDIANA LAW REVIEW (ISSN 0090-4198) is the property of Indiana University and is published quarterly by the Indiana University School of Law—Indianapolis, which assumes complete editorial responsibility thereof. Subscription rates: one year $25; foreign $28. Please notify us one month in advance of any change in address and include both old and new addresses with zip codes to ensure delivery of all issues. Send all correspondence to Editorial Assistant, Indiana Law Review, Indiana University School of Law—Indianapolis, 735 W. New York Street, Indianapolis, Indiana 46202. Publication office: 735 W. New York Street, Indianapolis, Indiana 46202. Second class postage paid at Indianapolis, Indiana 46201. POSTMASTER: Send address changes to INDIANA LAW REVIEW, 735 W. New York Street, Indianapolis, Indiana 46202. ® The entire text of this Law Review is printed on recycled paper. Indiana Law Review (ISSN 0090-4198) Published four times a year by Indiana University. Editorial and Business Offices are located at: Indiana Law Review 735 W. New York Street Indianapolis, IN 46202 (317)274-4440 Subscriptions. The current subscription rates are $25.00 per four-issue (domestic mailing) and $28.00 (foreign mailing). Unless the Business Office receives notice to the contrary, all subscriptions will be renewed automatically. Address changes must be received at least one month prior to publication to ensure prompt delivery and must include old and new address and the proper zip code. Single and Back Issues. Current single regular issues may be obtained from the Law Review Business Office for $8.00. Current Survey issues may be purchased for $17.00. The Centennial Issue may be purchased for $12.00. Please enclose payment with order. Complete sets and single issues of prior volumes are also available from the Law Review Business Office. Unless a claim is made for non receipt of issues within one year of the mailing date, we cannot guarantee supplying the issues without charge. Manuscripts. The Indiana Law Review invites submission of unsolicited manuscripts. All citations should conform to A Uniform System of Citation (15th ed. 1991). Manuscripts should be submitted in duplicate and double-spaced with wide margins. The Indiana Law Review, as a matter of policy, promotes the use of gender-neutral language, and alternate use of the female or male pronoun is intended to refer to both female and male. Copyright: Copyright 1995. The Trustees of Indiana University. Except as may be expressly provided elsewhere in this publication, permission is hereby granted to produce and distribute copies of individual works from this publication for nonprofit education purposes, provided that copies are distributed at or below cost, and that the author, source, and copyright notice are included on each copy. This permission is in addition to rights of reproduction granted under Sections 107, 108, and other provisions of the U.S. Copyright Act. Correction: Please note, the correct title to Professor L. Amede Obiora's Article in Volume 28, Issue 3 is New Wine, Old Skin: (En)gaging Nationalism, Traditionism, and Gender Relations.