Indiana Law Review Indiana Law SEP 1 1897 Periodical jDolleclion , Volume 30 No. 2 1997 LIBRRRY TRIBUTE William F. Harvey Tributes by Jeffrey W. Grove and Jennifer Trade Morris ARTICLES Missing Analytical Link in Supreme Court's "Salting" Decision Disturbs Balance of Union-Management Rights: A Critical Analysis of NLRB V. Town & Country Electric R. Wayne Estes and Andrea E. Joseph Judicial Abrogation of a Husband's Paternity: Can a Third Party Seek to Establish Paternity Over a Child Bom into a Marriage While That Marriage Remains Intact? Honorable Linda L. Chezem and Sarah L. Nagy The Impact of Technological Advancement on Pharmaceutical Company Liability Michael B. McMains and Catherine M. Morrison NOTES The Weakening of the Presumption of Validity for Design Patents: Continued Confusion Under the Functionality and Matter of Concern Doctrines Steven A. Church Racial Diversity as a Compelling Governmental Interest Robert J. Donahue Mandatory Appointment of Guardians Ad Litem for Children in Dissolution Proceedings: An Important Step Towards Low-Impact Divorce Candice M. Murphy-Farmer Will States Protect Us, Equally, from Damage Caps in Medical Malpractice Legislation? Jacqueline Ross Photocopying and Fair Use: Exploring the Market for Scientific Journal Articles Brian T Ster 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? Because top attorneys nationwide read Law Week every week, and as you know, it's never a bad idea to follow in the footsteps of the best. But more importantly — Law Week gives you complete coverage of today's most important cases, with immediate notification of precedent- setting court decisions in every legal field, plus unparalleled Supreme Court reporting. Indeed, Law Week puts you on the cutting edge of American law. What better way to start a successful legal career. 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Indiana University School of Law—Indianapolis 1996-97 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, ITT/Chicago-Kent College of Law; LL.M.. Yale University. Norman Lefstein, Dean and Professor ofLaw. 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 Nebraslca; LL.M., New York University. Jonna M. Kane, Assistant Dean for External Affairs. J.D., Indiana University—Indianapolis. Elizabeth L. DeCoux, Assistant Dean for Student Affairs. J.D., Mississippi College School of Law. JONi D. Thompson, Assistant Dean for Development. M.A., Ball State University. Angela M. 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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 of Law. A.B., Brandeis University; J.D., M.D., Harvard College. Joanne Orr, Clinical Professor of Law. J.D., California Western. David R. Papke, R. Bruce Townsend Professor ofLaw and Professor ofAmerican 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 of Law. A.B., Huntington College; J.D., University of North Carolina; LL.M., Yale University. Fran Quigley, Clinical Professor of Law. B.A., Hanover College; M.A., Indiana University — Bloomington; J.D., Indiana University—Indianapolis. Joan M. Ruhtenberg, Director ofLegal Writing. 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Blaiklock Symposium Editor Jana Schrink Strain Articles Editors James R. A. Dawson Robert J. Donahue Pamela K. Koehler Clifford A. Ong Mitchell M. Pote Jacqueline D. Ross Note Development Editors Michael C. Bartol Susan Charles Doris L. Moore Lakshmi V. Reddy Matthew T. Troyer Jill S. Walschlager Associate Editors Michael J. Alerding John B. Baxter Jon Beardsley Steven A. Church Kytha C. Eibel Brian J. Johnson Geoffrey S. Lohman John F. McCauley Kristin M. O'Neil Reagan K. Rick Brian T. Ster Stacy R. Ulisina Sean T. White Editorial Assistant Chris Paynter Faculty Advisor Debra A. Falender Indiana Law Review Volume 30 1997 Number 2 Copyright © 1997 by the Trustees of Indiana University TABLE OF CONTENTS TRIBUTE William F. Harvey 427 Tributes by Jejfrey W. Grove 439 Jennifer Trade Morris 441 ARTICLES Missing Analytical Link in Supreme Court's "Salting" Decision Disturbs Balance of Union-Management Rights: A Critical Analysis of NLRB V. Town & Country Electric R. Wayne Estes 445 Andrea E. Joseph Judicial Abrogation of a Husband's Paternity: Can a Third Party Seek to Establish Paternity Over a Child Born into a Marriage While That Marriage Remains Intact? Honorable Linda L. Chezem 467 Sarah L. Nagy The Impact of Technological Advancement on Pharmaceutical Company Liability Michael B. McMains 487 Catherine M. Morrison NOTES The Weakening of the Presumption of Validity for Design Patents: Continued Confusion Under the Functionality and Matter of Concern Doctrines Steven A. Church 499 Racial Diversity as a Compelling Governmental Interest Robert J. Donahue 523 Mandatory Appointment of Guardians Ad Litem for Children in Dissolution Proceedings: An Important Step Towards Low-Impact Divorce Candice M. Murphy-Farmer 55 1 Will States Protect Us, Equally, from Damage Caps in Medical Malpractice Legislation? Jacqueline Ross 575 Photocopying and Fair Use: Exploring the Market for Scientific Journal Articles Brian T. Ster 607 Volume 30 Number 2 William F. Harvey Carl M. Gray Professor of Law and Advocacy Retirement Tribute Education: University of Missouri, A.B. 1954. Georgetown University Law Center, J.D. 1959. Georgetown University Law Center, LL.M. 1961. Employment: 1957 1959-60 1960-61 1962-63 1961-68 1968-69 1969-73 Research Assistant, Antitrust Division, U.S. Department of Justice. Law Clerk, Honorable Thomas D. Quinn, District of Columbia Court of Appeals. Law Clerk, Honorable John A. Danaher, U.S. Court of Appeals, District of Columbia Circuit. Speaker in Law and Psychiatry, The Menninger Foundation, Topeka, Kansas. Tenured Full Professor of Law, Washburn University, Topeka, Kansas. Associate Professor of Law, Indiana University School of Law—Indianapolis. Professor of Law, Indiana University School of Law—Indianapolis. 428 INDIANA LAW REVIEW [Vol. 30:427 1973-79 Dean and Professor of Law, Indiana University School of Law—Indianapolis. 1979-96 Titled Professor of Law, Indiana University: Carl M. Gray Professor of Law and Advocacy, Indiana University School of Law—Indianapolis. Teaching and Professional Recognition: Honors Conferred I.U. Law Student Teaching Awards: Silver Service Award for Outstanding Teacher, 1970. Black Cane Award for Outstanding Teacher, 1971. Black Cane Award for Outstanding Teacher, 1981. Black Cane Award for Outstanding Teacher, 1988. Black Cane Award for Outstanding Teacher, 1991. Black Cane Award for Outstanding Teacher, 1995. Certificate of Appreciation, Evidence Class 1996 Certificate and Plaque of Appreciation, Civil Procedure II, Spring Evening Division 1991. Washburn University Law School Outstanding Teacher Award, 1968. Member: Indiana University's Rhodes and Marshall Scholarship Committee. Chairman ofthe Board ofDirectors, Legal Services Corporation, 1982. Wabash College, Judge David W. Peck Medal for outstanding contributions to the law and legal profession, 1984. Selected by President of the United States, Honorable Ronald W. Reagan, for Nomination to the U.S. Court ofAppealsfor the Seventh Circuit, 1985. National Trustee, National Lawyers Association, 1995- Indiana Continuing Legal Education Forum, Silver Pitcher & Stand, for Outstanding Years of Lecture to Attorneys of Indiana, 1996. Appointment by Governor ofIndiana, Honorable Evan Bayh, to ''Council of the Sagamores of the Wabash" for outstanding contributions to the People and State of Indiana, 1996. Professor William F. Harvey Day, Feb. 27, 1997, by Proclamation of Indianapolis Mayor Stephen Goldsmith. Subjects Taught: Civil Procedure I, Civil Procedure II, Evidence, Evidence Seminar, Litigation Survey/Trial Practice, Advanced Research—^by arrangement. 1997] WILLIAM F. HARVEY 429 Lecture by Invitation or Special Appointment: Indiana State Bar Examination Review, lecturer for 23 years (1969 to 1992, 8 lectures annually). U.S. Department ofDefense Information School (American and Foreign Officers & Personnel), Fort Benjamin Harrison, Indiana (1988 & 1989). Indianapolis Law Club (180 members) (192 lectures or 12 lectures annually, for 16 years). Lectures, Memberships and Public Functions: President, Student Bar Association, Georgetown University Law Center (1958-1959). Staff Member, Georgetown University Law Journal (1958-1959). Member, Society of the Descendants of Washington's Army at Valley Forge. Member, Sons of the American Revolution. State Representative (Kansas): National Conference on Bail and Criminal Justice (Washington, D.C. 1964). First President, All Faculty Senate Washburn University (1967). Member: Indiana Supreme Court Committee on Rules ofPractice and Procedure (Vice-Chairman of Committee) (23 years, 1970 to 1993) (Committee makes recommendations to the Indiana Supreme Court on changes in practice and procedure). Witness and Speaker: Federal Committee on the Reform and Reorganization of the Federal Appellate Courts (Chicago, 1975). Witness and Speaker: Federal Committee on the Quality of Advocacy in Federal Courts (Devitt Committee, Chicago, 1977). Member: Litigation Advisory Panel, Indiana Legal Foundation (1978- 1997). Member: Merit Selection Review Committeefor a Federal Magistrate, Southern District of Indiana (1981). Member: National Advisory Committee on Accreditation and Institutional Eligibility^ to the U.S. Secretary of Education (1982). 430 INDIANA LAW REVIEW [Vol. 30:427 Public Member: Administrative Conference ofthe United States (1983- 1986). Chairman: Scholarship Committee, Honorable Cale J. Holder Memorial Trust, Indiana University Foundation (1983-1997). Host: Chinese Ministry ofJustice Visitation (Indiana Host to Delegation from China's Ministry of Justice) (1984). Guest Speaker: Red Mass Address, May 3, 1985, Indianapolis. Guest Speaker: Retirement ofMr. Justice Donald H. Hunter, Supreme Court of Indiana, Oct. 1985. Conferee: Roscoe Pound and Liberty, Liberty Fund, 3 days, Oct. 1986. Guest Speaker: American Enterprise Institute, Conference on legal services, Nov. 1986, Washington, D.C. Member (by invitation): Indianapolis Literary Club, (1986-1997). Faculty Member (for State of Indiana), Indiana Code Revision Commission (1989-1996) (selected by nomination from the Governor of Indiana). Member: Indiana Supreme Court Records Management Committee (1986- present). Chairman: Indiana Advisory Committee to the United States Commission on Civil Rights (1987-1990). Member: Steering Committee, Titled Professors ofIndiana University (1987-1992). Member: Benjamin A. Rogge Memorial Trust, Wabash College, Crawfordsville, Indiana (1988-1992). Faculty Member (Indiana Code Revision Commission (1989-1996)) (selected by nomination from the Governor of Indiana). Member: Indianapolis Legal Aid Society, Board ofDirectors (1989-1997). Speaker, Memorial Service, Honorable James E. Noland, U.S. District Court, Dec. 11, 1992 with Governor Evan Bayh, Congressman Andy Jacobs, and others. See 816 F. Supp. LXVII (1993). Conferee, ''The Political Thought ofJacques Maritain'" Liberty Fund Conference, Oct. 27-30, 1994. 1997] WILLIAM F. HARVEY 431 Other Lectures, Between 1968 and 1996: In the years between 1968 and 1996, at least four (4) lectures a year were delivered to Bar Associations or lawyer's groups, or to college students or to high school or lower level grades at schools, and to social and civic groups. Bibliography. National Publications: Reporter: Federal Judicial Center Conferencefor U.S. District Courts, Washington, D.C. (Apr. 1974). See 64 F.R.D. 501 and 526 (1975). A Proposalfor Reform ofFederal Judiciary and Federal Regulatory Agencies: A New Beginning, A Blueprintfor Judicial Reform (Patrick B. McGuigan & Randall R. Rader, eds. Free Congress Research & Education Foundation, 1981). Some Different Thoughts About Bakke, Nat'lRev., Feb. 3, 1978, at 151; reprinted in full in IND. ALUMNI MAG., Apr. 1978. Rehabilitating Criminology, The Alternative: An American Spectator, Apr. 1976, at 27. (This publication is now titled. The American Spectator.) The Judicial Assault on the Attorney-Client Relationship: Thoughts on the 1983 Amendments to the Federal Rules of Civil Procedure, BENCHMARK, Mar.-Apr. 1984, at 17. Editorial, Wall St. J., Jan. 19, 1988, at 28. The Life and Death of the Fourteenth Amendment: Requiemfor a Heavyweight, in DERAILING THE CONSTITUTION (Prof. Edward B. McLean, ed., Intercollegiate Studies Institute 1995). Legal Publications: » Books: 1 William F. Harvey et al., Kansas Statutes Annotated: Code of Civil Procedure, Rules 101-212 (Vernon [West] 1963) (668 pages). 2 William F. Harvey et al., Kansas Statutes Annotated: Code of Civil Procedure, Rules 213-237 (Vernon [West] 1963) (669 pages). 3 William F. Harvey et al., Kansas Statutes Annotated: Code of Civil Procedure, Rules 238-269 (Vernon [West] 1964) (710 pages). 4 William F. Harvey et al., Kansas Statutes Annotated: Code of Civil Procedure, Rules 301-470 (Vernon [West] 1965) (648 pages). 432 INDIANA LAW REVIEW [Vol. 30:427 5 William F. Harvey et al., Kansas Statutes Annotated: Code of Civil Procedure, Rules 501-2003 (Vernon [West] 1967) (527 pages). 6 William F. Harvey et al., Kansas Statutes Annotated: Code of Civil Procedure, Rules 2101-End (Vernon [West] 1967) (388 pages). 1 William F. Harvey, Indiana Practice: Rules of Procedure Annotated, Rules 1-12 (West 1969) (689 pages). 2 William F. Harvey, Indiana Practice: Rules of Procedure Annotated, Rules 13-33 (West 1970) (718 pages). 3 William F. Harvey, Indiana Practice: Rules of Procedure Annotated, Rules 34-56 (West 1970) (667 pages). 4 William F. Harvey & Bruce Townsend, Indiana Practice: Rules of Procedure Annotated, Rules 57-85 (West 1971) (648 pages). 9 William F. Harvey et al., Indiana Practice: Procedural Forms, (West 1972) (636 pages). 10 William F. Harvey et al., Indiana Practice: Procedural Forms (West 1974) (611 pages). 1 1 William F. Harvey et al., Indiana Practice: Procedural Forms (West 1977) (855 pages). 1 William F. Harvey, Indiana Practice: Rules of Procedure Annotated, Rules 1-13 (West 2d ed., 1987) (787 pages). 2 William F. Harvey, Indiana Practice: Rules of Procedure Annotated, Rules 14-33 (West 2d ed., 1987) (801 pages). 3 William F. Harvey, Indiana Practice: Rules of Procedure Annotated, Rules 34-56 (West 2d ed., 1988) (779 pages). 4 William F. Harvey, Indiana Practice: Rules of Procedure Annotated, Rules 57-85 (West 2d ed., 1991) (748 pages). William F. Harvey, Indiana Practice: Rules on Alternative Dispute Resolution Annotated (West 1992) (112 pages). William F. Harvey, Indiana Practice: Rules on Alternative Dispute Resolution Annotated (West 1993) (112 pages). 1997] WILLIAM F. HARVEY 433 William F. Harvey & John R. Van Winkle, Indiana Practice: Rules ON Alternative Dispute Resolution Annotated (West 1995) (157 pages). William F. Harvey & John R. Van Winkle, Indiana Practice: Rules ON Alternative Dispute Resolution Annotated (West 1996) (172 pages). Pocketparts: Pocketparts are published annually for each volume of current sets in use. Each set of pocketparts is about 500 pages. Thus, in 25 years over 12,000 pages in pocketparts have been published. Articles: Criminal Law-Contempt of Court, Regina v. Odhams, Press, [1975] 1. Q.B. 73, 46 Geo. L.J. 347 (1957). Child Custody and Conflicts ofLaw, 30 J. BAR ASS'N KAN. 316 (1962). The New Kansas Code of Civil Procedure, A Procedural Revolution on the Great Plains, 36 F.R.D. 51 (1964)—co-authored. To the New Members of the Kansas Bar, 1 WASHBURN L.J. 47 (1967). A Policeman in Society: A New Approach, KAN. Gov*T J. 143 (1967); 113 Cong. Rec. A2484 (May 22, 1967). The Uniform Rules ofEvidence as Affected by the Federal Constitution, and as Adopted by One State, 29 MONT. L. REV. 137 (1968). 324 Monthly Articles, 1970-1996: Rules and Rulings, RES GESTAE: monthly Journal of the Indiana State Bar Association. Civil Procedure and Jurisdiction, Survey ofRecent Developments in Indiana Law, 1 IND. L. REV. 24 (1973). Civil Procedure and Jurisdiction, Survey ofRecent Developments in Indiana Law, 9 iND. L. REV. 66 (1975). Civil Procedure and Jurisdiction, Survey ofRecent Developments in Indiana Law, 10 iND. L. REV. 88 (1976). Civil Procedure and Jurisdiction, Survey ofRecent Developments in Indiana Law, 11 iND. L. REV. 51 (1978). Civil Procedure and Jurisdiction, Survey ofRecent Developments in Indiana Law, 12 iND. L. Rev. 42 (1979). 434 INDIANA LAW REVIEW [Vol. 30:427 Civil Procedure and Jurisdiction, Survey ofRecent Developments in Indiana Law, 13 IND. L. REV. 54 (1980). Civil Procedure and Jurisdiction, Survey ofRecent Developments in Indiana Law, 14 iND. L. REV. 129 (1981). Civil Procedure and Jurisdiction, Survey ofRecent Developments in Indiana Law, 15 iND. L. REV. 69 (1982). Civil Procedure and Jurisdiction, Survey ofRecent Developments in Indiana Law, 16 iND. L. REV. 57 (1983). Civil Procedure and Jurisdiction, Survey ofRecent Developments in Indiana Law, 17 iND. L. REV. 55 (1984). If Ye Are Privy To Thy Country 's Fate, Oh Speak: An Answer From Robin Paul Malloy's "Planning For Serfdom" and Classical Liberalism In The Tradition ofthe Scottish Enlightenment, 25 iND. L. REV. 633 (1992). Fragments From Our Fleece: Vignettes From 100 Years in a Great Law School, 28 iND. L. Rev. 143 (1995). Jim Beaver—A Great Scholar, A Dear Friend. A Tribute to Jim Beaver, 19 Seattle U. L. Rev. 10 (1996). Professor Ronald W. Polston, A Personal Recollection And Tribute, 29 IND.L. Rev. 759(1996). Remembering the Future, Nat'l Law. Ass'n Rev., Winter 1996, at 23. Legal-Medical Publications: New Eng. J. Med.: 279:834 (1968) (letter—comment, co-authored). Definitions ofDeath, 69 J. KAN. MED. Soc'Y 280 (1968)—co-authored, and see 37 J. KAN. Bar Ass'n 179 (1968). Anatomical Gifts, 69 J. Kan. Med. Soc'Y 343 (1968)—co-authored. The Beginning ofLife, 69 J. Kan. Med. Soc'Y 348 (1968)—co-authored. The Uniform Anatomical Gift Act-A Second Look, RES GESTAE, June 1969, at 14. An Introduction to Thomas S. Szasz, M.D., 3 iND. LEGAL F. 14 (1969). The Doctor-Patient Privilege, As Affected by Collins v. Bair and Trial Rule 34, Res Gestae, Jan. 1970, at 14. 1997] WILLIAM F. HARVEY 435 Medical vs. Legal Definitions ofDeath, 204 JAMA 103 (1968); abstracted, Modern Medicine (Sept. 23, 1968) (94 pages)—co-authored articles, which evolved into criteria recommended by the A.M.A. to be used in determination of medical death, especially in organ transplantation. Cited by Swafford v. State, 421 N.E.2d 596, 600 n.5a (Ind. 1981). International Affairs: China's Ministry ofJustice Officials Visit Indiana, 28 RES GESTAE 246 (1984). Licensure, Credentials and Bar Membership: Admitted to Practice: -State of Indiana -State of Virginia -District of Columbia -U.S. Supreme Court and all lower Federal Courts Member: -Indiana Bar Association -Virginia Bar Association -District of Columbia Bar Association -American Bar Foundation Fellow—1977 to present -American Bar Association Court Cases and Decisions—As an Attorney: Harbin v. Kupcha, No. 70-H-16 (N.D. Ind. 1970) (representing the Indiana Supreme Court). Soysal V. Indiana Supreme Court, No. 73-C-lOO (S.D. Ind. 1973). Soysal V. Indiana State Bd. of Law Examiners, No. 73-1462 (7th Cir. 1973) (representing the Indiana Supreme Court and the Indiana State Board of Law Examiners). Carter v. Stanton, 405 U.S. 669 (1972) (representing the State of Indiana, defendants). School Town of Speedway v. Dillin, 407 U.S. 920 (1972). Metropolitan Sch. Dist. v. Dillin, 412 U.S. 953 (1973). Keyes v. Denver Sch. Dist. No. 1, 413 U.S. 189 (1973) (for the State of Indiana). 436 INDIANA LAW REVIEW [Vol. 30:427 United States v. Board of Sch. Comm'rs, 368 F. Supp. 1191 (S.D. Ind. 1973), rev'd (as to Professor Harvey's clients), 503 F.2d 68 (7th Cir. 1974). Milliken v. Bradley, 418 U.S. 717 (1974) (for the State of Indiana). Bowen v. United States, 421 U.S. 929 (1975). Taylor v. American Bar Ass'n, 407 F. Supp. 451 (W.D. Wis. 1975), ajf'd, 539 F.2d 715 (7th Cir. 1976). Bowen v. United States, 429 U.S. 1068 (1977). Petition for certiorari, vacating on the Petition alone, the Federal Court of Appeals for the 7th Circuit, at 541 F.2d 1211 (1976), on remand, 573 F.2d 400 (7th Cir. 1978). University of California Regents v. Bakke, 438 U.S. 265 (1978) (with the Pacific Legal Foundation). This brief is discussed in Hochberger, N.Y.L.J., Aug. 19, 1977. United States v. Board of Sch. Comm'rs, 573 F.2d 400 (7th Cir. 1978). Bowen v. Buckley, 439 U.S. 982 (1978). Bowen v. United States, 439 U.S. 824 (1978). Bowen v. Buckley, 449 U.S. 838 (1980). In re LeMond, 413 N.E.2d 228 (Ind. 1980). Obremski v. Henderson, 497 N.E.2d 909 (Ind. 1986), vacating, 487 N.E.2d 827 (Ind. Ct. App. 1986). Inland Steel Co. v. Koppers Corp., 498 N.E.2d 1247 (Ind. Ct. App. 1986) (counsel for Koppers Corp., among others, on transfer petition to the Indiana Supreme Court). In re Public Law No. 154-1990, 561 N.E.2d 791 (Ind. 1990). Court Cases and Decisions—As a Consultant or Expert Witness: Sisco V. Chezem, No. S77C472 (Ind., Lawrence Sup. Ct. 1977). Citizens Action Coalition, Inc. v. P.S.C, K. 3154 (Ind., St. Joseph Cir. Ct. 1979) (Consultant for Indiana Bell Telephone). Indiana-Kentucky Elec. Corp. v. Green, No. 1-1280A341 (Ind. Ct. App. 1980) (Consultant). 1997] WILLIAM F. HARVEY 437 Miller v. Aquaslide *N' Drive Corp., No. C80-1672 (Ind., Marion Cir. Ct. 1981). Riddell v. Wilson, No. C80-2848 (D. Wyo. 1981) (Consultant). Price V. Amoco Oil Co., No. IP 77-154-C (S.D. Ind. 1981) (Consultant). Chairman: Medical Malpractice Review Panels (1989-1996): Cases of alleged medical malpractice against doctors of medicine, nurses and hospitals. (Selected by attorneys and parties, to serve with three (3) other doctors of medicine on each panel of which there is one in each case). Court Cases and Decisions—As a Party: Hillary Rodham [Clinton] et al. v. William F. Harvey, No. 82-0542 (D.D.C. 1982), on appeal, sub nom., 766 F.2d 535 (D.C. Cir. 1985). Military Service: Lieutenant, U.S. Navy (1954-1956) USS Boxer (CVA 21) Task Force 77: Korea & Indochina U.S. Naval Reserve (1950-1967) Phi Alpha Delta Initiation Indiana Supreme Court October 12, 1996 Remarks Honoring William F. Harvey, Carl M. Gray Professor of Law and Advocacy Professor Jeffrey W. Grove* Dean Harvey, when Phi Alpha Delta invited me to participate in this tribute to you, I decided that I would reveal nothing that might cause you discomfiture. For example, I am not going to detail your behind-the-scenes role as a senior advisor to President Clinton's re-election campaign. Nor do I intend to discuss your failed proposal to the law faculty that our students be required to complete fifty hours of Civil Procedure in order to graduate (a proposal which I, of course, supported). And, while your important service as a member of the Indiana Supreme Court Civil Rules Committee deserves mention, I see no reeison to describe your mighty efforts to have the Indiana Rules of Court denominated the William F. Harvey Rules of Practice. Ladies and gentlemen, when I joined the law faculty early in . . . well, let us say earlier in this century. Bill Harvey had been at the law school for several years. By the time I arrived, he was already emerging as a leader who would play a prominent role in guiding our school through the last quarter of its first century. He had already published the first volumes of his definitive treatise on Indiana civil practice. Within a few years of my arrival. Bill became the Dean of the law school. He labored in those administrative vineyards (or should I say, "swamps") for six years before returning to honest work as a full time law professor, and as a titled professor, no less: the Carl M. Gray Professor of Law and Advocacy. When Bill was the Dean, it was no secret that he and I did not always see eye- to-eye on matters of law school policy. (Of course, in relations between the dean and faculty, robust differences routinely arise. I have seen this myself from both sides.) Dean Harvey was a strong leader with well-developed ideas about law and legal education. I was a young and callow fellow with developing ideas of my own. And, we were on different stems of the political spectrum. I might have been a little to Bill's left, although I no longer wore "love beads" by the time I crossed the Indiana state line on my way to Indianapolis. It is probably true that over the years I have edged a bit closer to Bill's position on the pohtical spectrum. Bill, on the other hand, hasn't moved one inch. Bill Harvey was, and is, a man of conviction. He has always held close to his heart the best interests of our school. He has never given ground in defending those interests within the University, and beyond. In protecting those interests, he has been unyielding; he has never flinched and never quit. As the Dean, his efforts and determination built a library collection which was the largest in the State of Indiana and among the largest twenty-five law school libraries in the United States. Perhaps even more important to our school's future was his * Professor of Law, Indiana University School of Law—Indianapolis. A.B., 1965, Juniata College; J.D., 1969, George Washington University. 440 INDIANA LAW REVIEW [Vol. 30:439 steadfast insistence that Indiana University provide us with financial support comparable to that designated for the law school in Bloomington. The result, finally, was Indiana University's pledge of parity in the allocation of resources between its two law schools. Bill Harvey's deanship was a testament to his deep faith in our school and its mission. I have heard him say more than once that our school is "the finest didactic legal institution between the Alleghenies and the Rockies." I know he meant every word of that. I began these remarks by referencing the 1970s. But, in the words of Bill's old friend, Justice Joseph Story, the great 19th century jurist, those days now "are one with the snows of yesteryear." However, speaking of "snow" ... I recall a day in the early *70s when Bill and Bruce Townsend and Jim Beaver—all established stalwarts on the faculty—invited me to lunch with them at Shapiro's delicatessen on McCarty Street. I was running with the big dogs! I remember talking to Bill about a book by C.P. Snow, the English academician, essayist, novelist and sometimes member of the British government. I mentioned that in his book. The Two Cultures, Snow had argued that the scientific culture and the literary (or artistic) culture will never fully understand each other because their different predispositions and training cause them to think differently. Bill's observation was something to the effect: "Well, Jeff, we're lawyers. In our culture, our job is to think like lawyers. If we do that well, we can understand differences and we can deal with them." Bill believes in the value of lawyers' work, of which he has done a fair amount. And his work as a legal educator has been animated by his commitment to the preparation and training of future lawyers. I feel very privileged to have known Dean Harvey for these many years. I have witnessed the fidelity with which he embraces his principles and lives his values. I have seen his intellect in action. I have observed his dedication to his work, his faith in our school, his belief in his students, his devotion to his family, his loyal friendship. Naturally, I am not alone in having observed and experienced these qualities. Perhaps no member of our faculty is better loved or more respected by our students than is Bill Harvey. No other academic lawyer in Indiana enjoys higher esteem among this state's practicing bar, or is more regularly consulted by its members. No other law professor is more often cited by the judges of Indiana's courts. And the example Bill has set as devoted husband and father, and now father-in-law and grandfather, is one that warrants praise and emulation. Of course, as his friends well know, it is impossible to exaggerate the reciprocal devotion that his wife, Gerry Harvey, has invested in the life of their family and the unstinting support she has given to her husband in all things. Having known the "man from Missouri" for twenty-five years, I harbor only a single regret: I never got the chance to go one-on-one with Bill on a basketball court. And now, on the eve of his faculty retirement, I am afraid he is too advanced in age to match-up; at least his knees are too old. This is a joke, of course. I have seen the evidence of his former prowess—the ancient scars on his elbows which repeatedly hit the rim as he crashed the boards in his halcyon days. Even now, he would be a daunting competitor. I am honored to have had this chance to reminisce about my good friend, and I thank Phi Alpha Delta for giving me the opportunity to join in this deserved tribute to my valued colleague. The End of an Era Jennifer Tracie Morris December 1996 will not only mark the end of a year, but it will mark the end of an era—the thirty-five-year teaching career of Professor Wilham F. Harvey. It would take volumes to describe accurately Professor Harvey's contributions to the legal field. Even so, I will attempt to highlight the career of one of the school's most respected and amazing faculty members. After receiving his undergraduate degree from the University of Missouri, Professor Harvey was called to active duty upon a naval aircraft carrier during the wars in Korea and Indochina. Following his tour of duty, Professor Harvey moved from California to Arlington, Virginia, with his wife, a car load of belongings, and a letter of acceptance to Georgetown University Law School. Professor Harvey's wife, Gerry, worked as a teacher while he attended law school thus enabling him to graduate in 1959. Professor Harvey was admitted to the bar in Virginia and the District of Columbia in the same year and received his LL.M. from Georgetown University in 1961. After teaching as a professor of law at Washburn University in Topeka, Kansas, Professor Harvey accepted a teaching position with Indiana University in 1968. During his twenty-eight years with Indiana University, Professor Harvey served as Dean of the School (1973-79) and received the first endowed professorship in the law school's history as the Carl M. Gray Professor of Law. Recently, Governor Evan Bayh appointed Professor Harvey to the Council of the Sagamores of the Wabash, the highest honor the Governor can bestow. The Council of the Sagamores of the Wabash was created following World War II by Governor Gates and its members include former judges, chairmen of political parties, and the CEO of Lilly Pharmaceutical. Additionally, Professor Harvey was Chairman of the Board of the Legal Services Corporation (1982) in Washington, D.C., Vice Chairman of the Indiana Supreme Court Committee on Rules and Practice (twenty-three years), and Vice President of the Board of the Indianapolis Legal Aid Society. He was selected for nomination by President Ronald W. Reagan to the Seventh Circuit, and has authored various works such as Indiana Trial Practice, articles for national publications, and briefs for several important cases. Still, for all of his accomplishments. Professor Harvey's greatest contributions have been to the students of this law school. Professor Harvey commented that "the faces and memories of so many great students, so many who have become lasting friends," have created the strongest image of the last three decades for him. William F. Harvey's contributions to the law are as numerous as his awards for those contributions. Yet, the awards and accolades only scratch the surface with respect to who William F. Harvey is and what he has contributed during his career to the Indiana University Law School—Indianapohs. The best indicator of Professor Harvey's success are his students and the rapport that he has with them. To understand this * J.D. Candidate, 1998, Indiana University School of Law—Indianapolis. B.A., 1994, Indiana University—Bloomington. This article was first printed in The Dictum, Nov. 1996, at 1. 442 INDIANA LAW REVIEW [Vol. 30:441 rapport or, "to get a flavor for it" as Professor Harvey would say during a lecture, one need only visit one of his classes. Upon entering the class, one will see students scurrying for their notebooks, handouts, supplements, and rule books that are all essential to absorbing a "Harvey lecture." Class promptly begins as the clock strikes the top of the hour and not a minute after, with Professor Harvey's distinguished voice declaring, "Alright scholars, let's begin." The learned professor begins by introducing a topic that is difficult and complex and may take many years for the ordinary law student to master, but not to the students in his classroom. Why you ask? Professor Harvey will tell you that it is because Indiana University—Indianapolis is the "best law school in the state" with the "best students," but don't let him fool you. As much as we would like to pat ourselves on the back, it is the professor that makes the difference in this classroom. Just ask the students who have given Professor Harvey the "Black Cane" award for best professor on numerous occasions. Second year student Joanna Feltz notes her admiration for Professor Harvey due to "the respect he commands from his students, the great pride he takes in teaching students to become proficient lawyers, and for his unrelenting dedication to the school." "When I started my second year, in terms of useable lawyering tools, I had nearly an empty bag. This changed everyday in Professor Harvey's class. Through his lectures and insights he adds effective tools and sharpens those already in my bag to a razor sharp level," commented evidence student, Brian Gardner. The class continues as students feverishly scribble notes and the flow of critical lecture material seems endless until finally, a pause, as Professor Harvey's distinguished and serious voice transforms into a gentle story-telling voice that begins to depict the tale about one of our many distinguished alumni or one of the Supreme Court Justices whom he has known personally. Of course, each one of these anecdotes is relevant and lends insight to the material at hand, yet these mini-history lessons and stories of personal experiences do more than lend insight. They inject a human element into the study of law and put a recognizable face on the complex material that makes it readily understandable to the average law student. Still, a Harvey lecture would not be complete without a few class recitations. This is no ordinary recitation of a case brief as the student called upon stands tall before his/her peers to explain the case as if he or she were presenting oral argument before the court of appeals. "When one of my friends expressed interest in law school and wanted to know what law school was like, I brought her to Harvey's class," conmiented attorney and former student, Clint Blanck. Professor Harvey's theory behind recitation is that becoming a good lawyer starts the day that you walk into this school, and while you are here you should take advantage of every opportunity, which includes standing while reciting your case briefs. Class ends with a promise to cover more material during our next meeting as the sound of pens bouncing onto notebooks signals a sigh of relief from a student who narrowly missed having to recite before the distinguished professor on this day. It is readily apparent after attending a Harvey lecture, that William F. Harvey loves teaching students about the wonders of the legal profession. Second year student, Sarah Fette, expressed her feeling that "Professor Harvey is such an 1997] WILLIAM F. HARVEY: DICTUM TRIBUTE 443 effective teacher because he enjoys learning so much himself. He is always reminding us that learning doesn't stop just because a class ends or we graduate from law school." Second year student, Jennifer Sullivan, also commented, "One of the things I like best about Professor Harvey is that he so obviously enjoys teaching. This comes through when he teaches, and helps make him the excellent professor that he is." Evidence student Suzette Bewley further added, "From sitting in class with Professor Harvey, the respect he has for his predecessors, his contemporaries, and the law seems obvious. Yet also evident is the respect he has for his students. To me, he represents all that is pure and noble in the law, and he is a role model for students both professionally as attorneys and personally as human beings." Professor Harvey is currently teaching evidence, the course he believes is most important during law school. Dean Norman Lefstein stated, "Professor Bill Harvey has been one of the law school's leading teachers and scholars for many years. His classroom teaching is remembered with great admiration by literally thousands of the law school's graduates, all of whom learned their subjects better because they had Professor Harvey as their teacher." Professor Harvey explained that to become competent as a law teacher one must practice law, "but only to the extent that practice builds teaching." When asked what the most rewarding aspect of his job was. Professor Harvey responded, "The sensation or satisfaction that occurs when it seems that students understand what is being taught, and benefit or gain from it." Unfortunately, the present first-year class will not have the opportunity to learn from Professor Harvey; his teaching career will come to an end when he turns in the grades for his evidence class. However, he advised first-year students to "totally commit [themselves] to the law, and understand that it is vastly richer than the first-year curriculum." Professor Harvey commented that law schools need to place a greater emphasis on trial practice and maintain interaction between the profession and the students. In addition to being a member of the law school faculty. Professor Harvey served as Dean of the School of Law during the 1970s. Professor Harvey considers the improvement of the library to be one of the most significant accomplishments while he was dean. Professor Harvey noted that during the early 1970s the law library was completely inadequate; thus, when he took the position as dean, the library became a top priority. During this time. Chief Justice Norman Arterbum of the Indiana Supreme Court deposited the 11,000 volumes of the British Commonwealth Collection making it one of the best collections in the country. Through extensive buying and trading with the Library of Congress and other donations, the law library in Indianapolis was among the top twenty-three law libraries in the nation by 1979. Professor Harvey commented that being dean entails multiple administrative responsibilities within a huge state institution and stated that "every faculty member should be dean for five years because it teaches you something you would otherwise not know." Recently, Professor Harvey added to his teaching responsibilities by working on the restoration of the history of the Indiana Law School. Professor Harvey, Professor Larry WiUdns, Professor Ron Polston, the Alumni, and the Dean worked on "restoring the magnificent history of the Indiana Law School." Professor 444 INDIANA LAW REVIEW [Vol. 30:441 Harvey noted that most students are unaware of the history of the law school. He explained that two Vice Presidents, seven United States Senators, members of the House of Representatives, judges, Attorneys General have all graduated from our law school. Professor Harvey recalled graduates like Dr. John Morton-Finney, Judge Robert Staton, James V. Donadio, and Governor Ed Whitcomb among the law school's most interesting alumni. Looking back at the twenty-eight years that he spent at this law school. Professor Harvey takes his greatest satisfaction from "The great appreciation shown [to him] by the law students and alumni, the building of a great library, and restoring the magnificent history of the Indiana Law School." Following his retirement. Professor Harvey will continue to reside in Indianapolis, a city he calls "the finest big city" in the United States, with his wife of forty years, Gerry. Professor Harvey expressed his greatest thanks and recognition to his wife, "who worked [his] way through law school by teaching school. But for her, I would never have gone to law school, become a lawyer, or a professor. I owe her simply everything." Professor Harvey's accomplishment will continue to influence students, faculty, and staff long after he is gone, but that will not prevent him from being truly missed! In closing I will leave you with the following anecdote from Professor Harvey's secretary, Lorra Schroeder: There is one moment, that Professor Harvey was part of, that I shall never forget. The scene is just before Christmas and just after the annual "The Grinch Who Stole Christmas" TV show. My favorite "Scottish Professor" [Prof. Funk] was reciting choice lines from the show, verbatim, and at length, when Professor Harvey came out of his office to see what the racket was about, and then joined in. Not to be upstaged, the third of my favorite Professors [Prof. Karlson] popped out of his office and joined in the hubbub. Just picture three learned, distinguished, dignified Professors quoting, in unison and verbatim, the Grinch!