Indiana Law Review Indiana Law Review .ff c- 2 Volume 31 No. 1 1998 ^tasxatssiMSt K< "LIES, DAMN LIES AND STATISTICS: HOW EMPIRICAL RESEARCH SHAPES HEALTH LAW AND POLICY" A SYMPOSIUM IN CELEBRATION OF THE TENTH ANNIVERSARY ^.^^ ««.«.«.»,»*««..«©e^EHE CENTER FOR LAW AND HEALTH INDIANA UNIVERSITY SC„*LOF»imS,„ TRIBUTE Walter K. Krieger Tribute by Debra A. Falender Introduction Eleanor D. Kinney David Orendicher frectors, The Centerfor Law and Health ARTICLES End-of-Life Decision Making: What We Don't Know, We Make Up; What We Do Know, We Ignore Sandra H. Johnson Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil or Window on the World? William M. Sage Getting a Handle on Coverage Decisions: If Not Case Law, Then What? MaxwellJ. Mehlman Empirical Studies of Judicial Decisions Serve an Important Role in the Cumulative Process of Policy Makmg Karen A. Jordan The Application of Antitrust Doctrine to the Healthcare Industry: The Interweaving of Empirical and Normative Issues James F. Blumstein Recognition of Health Care Market Anomalies John C. Render Presumptions, Damn Presumptions and Economic Theory: The Role of Empirical Evidence in Hospital Merger Analysis Michael S. Jacobs NOTES The State of Copyright Protection for Electronic Databases Beyond ProCD V. Zeidenberg: Are Shrinkwrap Licenses a Viable Alternative for Database Protection? Jennett M. Hill Seminole Tribe and Superfund: A Federalism Gamble Barry L. Loftus Will NASCAR Have to Put on the Brakes'!': The Constitutionality of the FDA's Ban on Brand-Name Tobacco Sponsorship in Motor Sports Scott D. Matthews Family In Law. In 1933, BNA first published The United States Law Week. that first issue, BNA set a new standard for high-quaUty legal reporting and research. Following Law Week's precedent, BNA has since launched a family of information services for legal professionals. 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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 Directorfor Technical Services. A.B., Taylor University; M.L.S., Indiana University. Bruce Kleinschmidt, Reference Librarian. B.A., Furman University; J.D., University of Louisville: M.L.S., University of North Texas. Chris E. Long, Catalog Librarian. B.A., Indiana University; M.A., Indiana University; M.L.S., Indiana University. Mahnaz K. Moshfeoh, Acquisition/Serials Librarian. B.A., National University of Iran; M.S., Tehran University; M.A., Ball State University; M.L.S., Ph.D., Indiana University. Kiyoshi Otsu, Computer System Specialist. A.A.. Parkland College; A.B., M.S., C.A.S., University of Illinois. Indiana Law Review Volume 31 1998 Number 1 Copyright © 1998 by the Trustees of Indiana University TABLE OF CONTENTS TRIBUTE Walter W. Krieger Tribute by Debra A. Falender 1 SYMPOSIUM Introduction: "Lies, Damn Lies and Statistics: How Empirical Research Shapes Health Law and Policy" Eleanor D. Kinney 9 David Orentlicher End-of-Life Decision Making: What We Don't Know, We Make Up; What We Do Know, We Ignore Sandra H. Johnson 13 Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil or Window on the World? William M Sage 49 Getting a Handle on Coverage Decisions: If Not Case Law, Then What? Maxwell J. Mehlman 75 Empirical Studies of Judicial Decisions Serve an Important Role in the Cumulative Process of Policy Making Karen A. Jordan 8 1 The Application of Antitrust Doctrine to the Healthcare Industry: The Interweaving of Empirical and Normative Issues James F. Blumstein 91 Recognition of Health Care Market Anomalies John C. Render 119 Presumptions, Damn Presumptions and Economic Theory: The Role of Empirical Evidence in Hospital Merger Analysis Michael S. Jacobs 125 NOTES The State of Copyright Protection for Electronic Databases Beyond ProCD v. Zeidenberg: Are Shrinkwrap Licenses a Viable Alternative for Database Protection? Jennett M. Hill 143 Seminole Tribe and Superfund: A Federalism Gamble Barry L Loftus 183 Will NASCAR Have to Put on the Brakes?: The Constitutionality of the FDA's Ban on Brand-Name Tobacco Sponsorship in Motor Sports Scott D. Matthews 219 Volume 31 Number 1 Tribute to Professor Walter W. Krieger Debra a. Falender Walter W. Krieger and I arrived at the Indiana University School of Lav^—^Indianapolis at nearly the same time—^he in the fall of 1971 as a first-time professor of property and agency lav^, and I in the fall of 1972 as a first-year law student enrolled in his Property I course. At that time, neither of us had any notion that our paths would be intertwined for the next twenty-five years. For the entire first week of Property class in the fall of 1972, we discussed property rights in foxes pursued by hunters across a wasteland. The second week, we studied finders and keepers, and discovered that losers need not weep; and by the third week, we were ready to learn about property interests in buried treasure, bank notes on a window ledge, and rings in the mud at the bottom of a pool in the south of England. Many things were perplexing to us during the first few weeks of law school, but one fact was absolutely clear to me and to everyone else in that Property class—Professor Krieger was a wonderful, caring person, and we liked him and respected him immensely. Twenty-five years later, the same fact remains absolutely clear—Professor Krieger is a wonderful, caring person, and we (his students and colleagues) like him and respect him immensely. In recognition of his teaching ability, the students voted him the recipient of the Black Cane Outstanding Professor Award in 1987. Recently, in 1997, the faculty honored him with a dinner and accolades on the occasion of his retirement. The Indiana Law Review, in this retirement tribute, also celebrates Professor Krieger' s quarter-century career as a member ofthe faculty of the Indiana University School of Law—Indianapolis, and I am pleased to play a small part in that celebration, because Walter Krieger is my very special friend. Walter Krieger was bom, raised, and educated in Kentucky. He received his B.A. in 1959 from Bellarmine College in Louisville, and his J.D. (cum laude) in 1962 from the University of Louisville, where he was student editor of the Journal of Family Law and a member of the Phi Kappa Phi Honor Society and The Brandeis Society. After completing law school, Krieger served as Judge Advocate in the U.S. Navy in Virginia and Hawaii, and ultimately was certified as a Military Judge by the Department of the Navy in 1969. Also in 1969, he received an LL.M. (with highest honors) in Public International and Comparative Law from the George Washington University National Law Center. Subsequently, he served in Washington, D.C., as the Assistant Head of the Law of the Sea Division in the Office of the Judge Advocate General of the Navy, until he resigned his regular commission as Lieutenant Commander in the U.S. Navy Judge Advocate General's Corps to accept a position on our faculty in 1971. After such interesting experiences as prosecuting and defending clients in special and general courts-martial in Oahu, and advising the U.S. State Department during bilateral fisheries negotiations with Poland and the Soviet * Professor of Law, Indiana University School of Law—Indianapolis, 1976-1997. J.D., 1975, Indiana University School of Law—Indianapolis; A.B., 1970, Mount Holyoke College. INDIANA LAW REVIEW [Vol. 31:1 Union, one wonders what it was like to arrive in landlocked Indianapolis in 1971 to begin teaching Property Law to first-year law students. To Walter Krieger, it surely felt good. He had returned to his midwestem roots. One gets a good sense of this from the stories he shared with his students—^not stories of naval malpractice investigations, military life, or Washington politics, but stories of Kentucky Ducks, Red-Eyed Hogs, and Three Little Orphans, stories that gave life to the concepts of precedent, stare decisis, and equity. Between August 1971 and his retirement in December 1996, Walter Krieger taught agency law, military law and international law, but early on, the focus of his teaching, writing, and outside speaking was in the areas of property and probate law. In 1980, 1982, and then continuously from 1984 until his retirement, he wrote the annual survey of property law for the Indiana Law Review} His survey pieces are a delight to read and reread. He often included a gentle, sometimes subtle commendation for a particularly well-written and tightly analyzed decision, and occasionally he could not resist a polite but not-so- subtle chiding when a court didn't get the analysis or the conclusion quite right. His consistent and thoughtful work in the annual surveys had an important positive effect on the course of Indiana property law. Walter Krieger' s special research focus was in landlord-tenant law, where he relentlessly prodded the courts and the legislature to revise and modernize Indiana law in accord with national trends. In a 1977 article, Krieger and his co- author, Michael Shum, criticized the Indiana legislature for failing to enact modem landlord-tenant legislation, and then challenged the courts to assume the responsibility. ^ Later, in a 1986 article, Krieger lamented that neither the courts nor the legislature had risen to the task of injecting certainty and fairness into Indiana landlord-tenant law, and once again, he gently encouraged them to do so in the near future. ^ Walter wrote bar review outlines and taught bar review courses in agency/partnership and trusts for many years, until his health began to get the better of him in the summer of 1994. He also regularly lectured to lawyers in continuing education seminars. He was very well-received as a speaker, because 1. Krieger's Annual Surveys of Indiana Property Law for 1980, 1982, and 1984 through 1994, appear at 14 IND. L. REV. 459 (1981); 16 IND. L. Rev. 283 (1983); 18 IND. L. Rev. 347 (1985); 19 IND. L. Rev. 299 (1986); 20 iND. L. Rev. 305 (1987); 21 iND. L. Rev. 343 (1988); 22 iND. L. REV. 369 (1989); 23 iND. L. Rev. 485 (1990); 24 iND. L. Rev. 1065 (1991); 25 iND. L. Rev. 1375 (1992); 26 iND. L. Rev. 1113 (1993); 27 iND. L. Rev. 1285 (1994); 28 iND. L. Rev. 1041 (1995). 2. Walter W. Krieger & Michael A. Shum, Landlord-Tenant Law: Indiana at the Crossroads, 10 iND. L. REV. 591 (1977). 3. Walter W. Krieger, Housing Code Violations and Tenant Remedies, 19 iND. L. REV. 299, 322-23 (1986): "The application of the illegal contract doctrine to housing code violations and the recognition of an implied warranty of habitability in residential leases have replaced the old no duty to repair rule and the doctrine of caveat lessee. Nevertheless, in Indiana, the limited number of judicial decisions and the lack of legislation have left the scope of these new tenant remedies and landlord obligations uncertain." 1 998] WALTER W. KRIEGER TRIBUTE of his incredible knowledge of old and new cases and statutes, his delightful sense of humor, and his very pleasant demeanor, the very same traits that earned him the enduring respect of his law students over the years. Walter always wore a smile, even in the midst ofthe most tedious committee meeting. He always said yes when asked to chair a committee, or judge a moot court competition, or present a model class to parents at Family Law Day. Every year, he received numerous thank-you letters from various law school and community organizations, for the generous devotion of his time and expertise. Perhaps Walt said yes too often. Health problems plagued him in the last few semesters of his teaching. I know there were days when he had trouble just walking to his classroom. But he persevered, with a trademark twinkle in his eyes and an uncommon ability to share an amusing anecdote and make people smile. Walter is a family man. He has a close and loving relationship with his lovely wife Carolyn, and I have never known a father more proud of a child's accomplishments and talents. In prominent locations in his office, Walter always displayed with pride the artwork of his son, James Edward. Walter Krieger leaves the law school following a distinguished career. I and Walter's many close friends on the faculty wish Walter and his family all the best in the years to come. Walter W. Krieger, Jr. Education'. Bellarmine College, Louisville, B.A., 1959. University of Louisville, J.D., 1962, cum laude. The George Washington University, LL.M., 1969, with highest honors. Academic Appointments: 1971-73 Assistant Professor of Law, Indiana University School of Law—Indianapolis. 1973-96 Associate Professor of Law, Indiana University School of Law—Indianapolis. Honors andAwards: Who's Who in American Colleges and Universities, 1959, 1962. Student Editor, Journal of Family Law, 1961-62. Phi Kappa Phi Honor Society, 1962. Omicron Delta Kappa Outstanding Senior Award, 1962. The Brandeis Society, University of Louisville, 1983. Black Cane Award as Outstanding Professor, 1986-87 (Student Bar Association). Subjects Taught: Military Law; International Law; Agency; Property; Wills and Trusts; Fiduciary Administration; Future Interests. INDIANA LAW REVIEW [Vol. 31:1 Bar Admissions: Indiana (1980). Kentucky (1962). Professional Experience: Judge Advocate General Corps, United States Navy (active duty, 1962-71). Staff Judge Advocate, U.S. Naval Hospital, Virginia, 1963-66 (Letter of Commendation, 1966). Staff Judge Advocate, U.S. Naval Air Station, Hav^aii, 1966-68 (additional duty Staff, Commander Fleet Air Hawaii). Admitted to practice before the Court of Military Appeals, 1967. U.S. Navy Post-Graduate Educational Program, The George Washington University, 1968-69. Certified Military Judge of Courts-Martials of the Armed Forces, 1969. Assistant Head of the Law of the Sea Division, International Law Division, Office of the Judge Advocate General of the Navy, Washington, D.C., 1 969-7 1 . Department of Defense Advisor to U.S. State Department on Bilateral Fisheries Negotiations with (then) Soviet Union and Poland, 1970-71. On faculty of the Indiana Continuing Legal Education Forum (ICLEF), in Seminars, Property and Trust areas, 1983-95. Panelist in ICLEF seminars in the Property and Trust areas. Bibliography: Articles: The United Nations Treaty Banning Nuclear Weapons and Other Weapons ofMass Destruction on the Ocean Floor, 3 J. MARITIME L. & COMM. 107 (1971). Lieberman: How the Government Breaks the Law, 6 IND. L. REV. 629 (1973) (book review). Walter W. Krieger, Jr. & Michael A. Shum, Landlord-Tenant Law: Indiana at the Crossroads, 10 iND. L. REV. 591 (1977). 1980 Survey ofRecent Developments in Indiana Law: Property, 14 iND. L. REV. 459 (1981). 1982 Survey ofRecent Developments in Indiana Law: Property, 16 iND. L. REV. 283 (1983). 1 998] WALTER W. KRIEGER, JR. 7 1984 Survey ofRecent Developments in Indiana Law: Property, 1 8 IND. L. Rev. 347(1985). Housing Code Violations and Tenant Remedies, 19 iND. L. REV. 299 (1986). Developments in Property Law, 20 iND. L. REV. 305 (1987). Property Survey 1987, 21 iND. L. REV. 343 (1988). Survey ofIndiana Property Law, 22 iND. L. REV. 369 (1989). Survey of Recent Developments in Property Law, 23 iND. L. REV. 485 (1990). Recent Developments in Property Law, 24 iND. L. REV. 1 065 ( 1 99 1 ). Recent Developments in Property Law, 25 iND. L. REV. 1375 (1992). 1992 Developments in Indiana Property Law, 26 iND. L. REV. 1113 (1993). 1993 Developments in Indiana Property Law, 27 iND. L. REV. 1285 (1994). 1994 Developments in Property Law, 28 iND. L. REV. 1041 (1995). Other Publications: ICLEF manuals in Property and Trust areas. Author ofAgency Outline, Partnership Outline, and Trust Outline published in Indiana Bar Review Outlines by Professional Education Corporation. Produced teaching materials for course in Military Law taught in the mid 1970s. Participated from 1973-96 in Bar Review course.