Indiana Law Review Indiana Law Resaew I ion Volume 31 No. 4 1998 TRIBUTE cr:P \ * X^S^ William A. Kerr •3 * *\ $^Tnbute by Susanah Mead & Joan Ruhtenberg ARTICLES The Mythology of Waivers of Bankruptcy Privileges Thomas G. Kelch Michael K. Slattery Reevaluating Substantive Due Process as a Source of Protection for Psychiatric Patients to Refuse Drugs William M. Brooks Health Care Information Technology and Informed Consent: Computers and the Doctor-Patient Relationship Frances H. Miller McDonald-Merrill-Ketcham Lecturer SYMPOSIUM INDIANA'S MEDICAL MALPRACTICE REFORM Indiana's Medical Malpractice Reform Revisited: A Limited Constitutional Challenge Eleanor D. Kinney Judicial Policy and Quantitative Research: Indiana's Statute of Limitations for Medical Practitioners Randall R. Bovbjerg Joel M. Schumm Appendix 1: Brief of Amicus Curiae Indiana Trial Lawyers Association Laurence H. Tribe Roger L. Pardieck Appendix 2: Brief of Amicus Curiae Indiana State Medical Association David C. Jensen Sherry L. Clarke NOTES Eight Years After Milkovich: Applying a Constitutional Privilege for Opinions Under the Wrong Constitution M. Eric Eversole Interpretation of Patent Process Claims in Light of the Narrowing Effect of35U.S.C. § 112© Brad A. Schepers Economics and the Individuals with Disabilities Education Act: The Influence of Funding Formulas on the Identification and Placement of Disabled Students Theresa M. Willard Striking Back at "Extortionate" Securities Litigation: Silicon Graphics Leads the Way To a Truly Heightened and Uniform Pleading Standard Michael A. Dorelli Family In Law. In 1933, BNA first published The United States Law Week. With that first issue, BNA set a new standard for high-quality legal reporting and research. Following Law Week's precedent, BNA has since launched a family of information services for legal professionals. BNA's notification services cover key areas of the legal field. They include: BNA's Family Law Reporter. BNA 's Bankruptcy Law Reporter. BNA 's Securities Regulation & Law Report. BNA 's Banking Report. BNA 's Federal Contracts Report. BNA 's Patent, Trademark & Copyright Journal. BNA 's Criminal Law Reporter. And BNA 's Electronic Information Policy & Law Report. Whichever publication you choose, you'll notice the family resemblance — comprehensive, accurate, in-depth coverage. Ask your professor for details on low student rates for BNA information services. The Bureau of National Affairs, Inc. 1231 25th Street, NW Washington, DC 20037 Customer Relations: 1-800-372-1033 email: lw@bna.com http://www.bna.com Indiana Law Review Volume 3 1 1997-98 Editor-in-Chief Joseph C. Bowman Executive Managing Editor Michael A. Dorelli Executive Articles Editor Janice C. Whiteside Executive Notes and Topics Editor Jennifer A. Dunfee Symposium Editor Jonathan D. Mattingly Articles Editors Brent A. Auberry M. Eric Eversole Carol A. Modesitt Michelle M. Molin Joel M. Schumm Theresa M. 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Send all correspondence to Editorial Assistant, Indiana Law Review, Indiana University School of Law—Indianapolis, 735 W. New York Street, Indianapolis, Indiana 46202-5194. Publication office: 735 W. New York Street, Indianapolis, Indiana 46202-5194. Periodicals postage paid at Indianapolis, Indiana 46201 . POSTMASTER: Send address changes to INDIANA LAW REVIEW, 735 W. New York Street, Indianapolis, Indiana 46202-5194. © The entire text of this Law Review is printed on recycled paper. Indiana University School of Law—Indianapolis 1997-98 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. Susanah M. Mead, Associate Dean for Academic Affairs and Professor of Law. B.A., Smith College; J.D., Indiana University—Indianapolis. 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. 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 Cynthia M. Adams, Lecturer in Law. B.A., Kentucky Wesleyan College; J.D., Indiana University — Indianapolis. Thomas B. Allington, Professor ofLaw. 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 of Law Library. A.B., J.D., M.A.L.S., University of Michigan. Gerald L. Bepko, Vice Presidentfor Long-Range Planning, Chancellor, and Professor of Law. B.S., Northern Illinois University; J.D., HT/Chicago-Kent College of Law; LL.M., Yale University. Robert Brookins, Professor of Law. B.S., University of South Florida; J.D., Ph.D., Cornell University. Daniel H. Cole, Professor of Law. A.B., Occidental College; A.M., University of Chicago; J.D., Lewis and Clark College; J.S.M., Stanford Law School. Jeffrey O. Cooper, Assistant Professor of Law. A.B., Harvard University; J.D., University of Pennsylvania. Paul N. Cox, Professor of Law. B.S., Utah State University; J.D., University of Utah; LL.M., University of Virginia. Kenneth D. Crews, Associate Professor of Law 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). George E. Edwards, Associate Professor of Law and Director, Program in International Human Rights and Law. B.A., North Carolina State University; J.D., Harvard Law School. Paul J. Galanti, Professor of Law. A.B., Bowdoin College; J.D., University of Chicago. Harold Greenberg, Professor ofLaw. A.B., Temple University; J.D., University of Pennsylvania. Jeffrey W. Grove, Professor of Law. A.B., Juniata College; J.D., George Washington University. Frances Watson Hardy, Clinical Professor of Law. B.S., Ball State University; J.D., Indiana University—Indianapolis. Michael R. Heise, Assistant Professor of Law and Director, Program in Law and Education. A.B., Stanford University; J.D., University of Chicago; Ph.D., Northwestern University. W. William Hodes, Professor of Law. A.B., Harvard College; J.D., Rutgers, Newark. Lawrence A. Jegen, III, Thomas F. Sheehan Professor ofTax Law and Policy. A.B., Beloit College; J.D., M.B.A., The University of Michigan; LL.M., New York University. Henry C. Karlson, Professor of Law. A.B., J.D., LL.M., University of Illinois. William Andrew Kerr, Professor ofLaw. A.B., West Virginia University; J.D., LL.M., Harvard University; B.S., Duke University. Eleanor D. Kinney, Professor ofLaw and Co-Director of the Centerfor Law and Health. B.A., Duke University; M.A., University ofChicago; J.D., Duke University; M.P.H., University of North Carolina. Ronald J. Krotoszynski, Jr., Assistant Professor of Law. B.A., M.A., Emory University; J.D., LL.M., Duke University. Norman Lefstein, Dean and Professor of Law. LL.B., University of Illinois; LL.M., Georgetown University. Lynn A. McDowell, Clinical Professor ofLaw. B.S Indiana University; J.D., Indiana University — Indianapolis. Deborah McGregor, Lecturer in Law. B.A., University of Evansville; J.D., Georgetown University. Patricia McMath, Visiting Lecturer in Law. B.A., J.D., Indiana University—Indianapolis. Susanah M. Mead, Associate Dean and Professor of Law. 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 of Law and Co-Director of the Center for Law and Health. A.B., Brandeis University; J.D., M.D., Harvard College. Joanne Orr, Clinical Professor ofLaw. B.S., Indiana State University; 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. FLORENCE WAGMAN ROISMAN, Associate Professor ofLaw. B.A., University of Connecticut; LL.B., Harvard Law School. Joan M. Ruhtenberg, Director ofLegal 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. E. Gary Spitko, Assistant Professor of Law. A.B., Cornell University; J.D., Duke University Law School. June O. Starr, Associate Professor of Law. B.A., Smith College; M.A., Columbia University; Ph.D., University of California, 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. James Patrick White, Professor of Law and Consultant on Legal Education to the American BarAssociation. A.B., University of Iowa; J.D., LL.M., George Washington University. Lawrence P. Wilkins, Professor ofLaw. 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. David A. Funk, Professor ofLaw Emeritus. A.B., College of Wooster; J.D., Case Western Reserve University; M.A., The Ohio State University; LL.M., Case Western Reserve University; LL-M., Columbia University. Helen P. Garfield, Professor Emerita. B.S.J., Northwestern University; J.D., University of Colorado. William F. Harvey, Carl M. Gray Professor of Law & Advocacy Emeritus. A.B., University of Missouri; J.D., LL.M., Georgetown University. Melvin C. Poland, Cleon H. Foust Professor of Law 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 of Law Library. A.B., J.D., M.A.L.S., University of Michigan. Minde C. Browning, Assistant Director for Readers' Services. B.A., Western University; M.L.S., Indiana University; J.D., Indiana University School of Law—Indianapolis. 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. Moshfegh, 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 4 Copyright © 1998 by the Trustees of Indiana University TABLE OF CONTENTS TRIBUTE William A. Kerr Tribute by Susanah Mead & Joan Ruhtenberg 893 ARTICLES The Mythology of Waivers of Bankruptcy Privileges Thomas G. Kelch 897 Michael K. Slattery Reevaluating Substantive Due Process as a Source of Protection for Psychiatric Patients to Refuse Drugs William M. Brooks 937 Health Care Information Technology and Informed Consent: Computers and the Doctor-Patient Relationship Frances H. Miller 1019 SYMPOSIUM Indiana's Medical Malpractice Reform Revisited: A Limited Constitutional Challenge Eleanor D. Kinney 1043 Judicial Policy and Quantitative Research: Indiana's Statute of Limitations for Medical Practitioners Randall R. Bovbjerg 1051 Joel M. Schumm Appendix 1: Brief of Amicus Curiae Indiana Trial Lawyers Association Laurence H. Tribe 1089 Roger L. Pardieck Appendix 2: Brief of Amicus Curiae Indiana State Medical Association David C. Jensen 1 099 Sherry L. Clarke NOTES Eight Years After Milkovich: Applying a Constitutional Privilege for Opinions Under the Wrong Constitution M. Eric Eversole 1 107 Interpretation of Patent Process Claims in Light of the Narrowing Effect of 35 U.S.C. § 112(6) Brad A. Schepers 1133 Economics and the Individuals with Disabilities Education Act: The Influence of Funding Formulas on the Identification and Placement of Disabled Students Theresa M. Willard 1 167 Striking Back at "Extortionate" Securities Litagation: Silicon Graphics Leads the Way to a Truly Heightened and Uniform Pleading Standard Michael A. Dorelli 1 1 89 Volume 3 1 Number 4 William A. Kerr Tribute to Andy Kerr Susanah Mead* Joan Ruhtenberg" Professor William A. Kerr retired from Indiana University School of Law—Indianapolis at the end of the 1997-98 academic year after thirty years of teaching. We are honored to have the opportunity to write this tribute, and we consider ourselves well suited to the task. Both of us had the privilege, shared now with hundreds of Indiana lawyers, of having been taught by Andy Kerr. In addition, we have known him as a friend and colleague for twenty years. Thus, we have a unique perspective on Andy and his remarkable contributions to this institution. Andy demonstrated his academic bent early. He received his Bachelor of Arts degree in 1955 and his Juris Doctor degree in 1957 from West Virginia University, where he was named to Phi Beta Kappa and the Order of the Coif. In 1957 he received a Ford Foundation Fellowship to attend the Harvard Law School, which awarded him the Master ofLaws degree in 1958. His legal career began in 1958 when he was assigned to serve as a trial attorney in the Judge Advocate General Department of the United States Air Force. During his three years of military service, Andy served as prosecutor or defense attorney in numerous court-martial proceedings involving charges ranging from AWOL to murder, with everything from larceny to bigamy in between. After completing active duty with the Air Force, Andy joined the litigation department of a Philadelphia law firm, Schnader, Harrison, Segal & Lewis, where he practiced for three years before deciding to pursue an academic career. As an additional preparation for that career and because of his abiding interest in religion and law, he entered the Duke University Divinity School and in 1968 earned a Master of Divinity degree with summa cum laude honors. That year, he joined the faculty at Indiana University School of Law—Indianapolis and has been a member of the faculty ever since. His teaching interests have been many and varied. During his career, he has taught Criminal Law, Criminal Procedure, Evidence, Domestic Relations, Church and State, Torts, Jurisprudence, Appellate Advocacy, and Trial Advocacy. It is fair to say, however, that his great love, and the focus of his considerable energy, both scholarly and practical, has been criminal law and procedure in general and the Indiana criminal justice system in particular. Throughout his teaching career, Andy was deeply interested in the relationship between practice and theory. Shortly after joining the faculty, he took advantage of an opportunity to serve as Assistant United States Attorney, while continuing to teach part-time. When he returned to full-time teaching in 1972, he was asked to assist the Indiana Prosecuting Attorneys Association in establishing a staff agency at the law school. He served as Director of Research * Associate Dean for Academic Affairs and Professor of Law, Indiana University School ofLaw—Indianapolis. B.A., Smith College; J.D., Indiana University School of Law—Indianapolis. ** Director of Legal Writing and Clinical Professor Law, Indiana University School of Law—Indianapolis. B.A., Mississippi University for Women; J.D., Indiana University School of Law—Indianapolis. 894 INDIANA LAW REVIEW [Vol. 3 1 :893 for this agency, which became the Indiana Prosecuting Attorneys Council. The success of this venture prompted the Indiana judiciary to enlist his aid in creating a similar state agency for the judiciary, which became the Indiana Judicial Center. Andy served as its Executive Director for twelve years, although he remained a member of the law school faculty. Andy's many efforts to improve the criminal justice system in Indiana and the accolades awarded to him for those efforts are too numerous to recount here. Notable among them, however, was his work with the Indiana Criminal Law Study Commission from 1973 until 1989. During that time, with Andy often serving as secretary, the commission completely revised the state's antiquated criminal code and criminal procedure code. His tireless crusade to improve the juvenile justice system earned him a distinguished service award from the Indiana Council of Juvenile Court judges in 1979 and an award for an outstanding judicial education program from the National Council of Juvenile and Family Court Judges in 1985. It is no exaggeration to say that Andy Kerr has been one of the most influential forces in shaping the Indiana criminal justice system in the last quarter century. In addition to these impressive accomplishments, Andy Kerr was a superb teacher. He taught hundreds of law students and inspired many ofthem to pursue careers in criminal justice. He also taught practicing lawyers, judges, and on at least one occasion, the public. During professional boxer Mike Tyson's trial, Andy was the legal analyst for the local NBC affiliate. Always the teacher first and foremost, Andy took this experience into the classroom. Struck by how closely the various motions made before and during the trial coincided with the material that he intended to cover in his Criminal Procedure class, Andy decided to use the trial proceedings as a teaching tool. For three weeks, his students had the rare experience of learning principles of criminal procedure as the principles were being applied in an ongoing and much publicized criminal proceeding. This novel approach to teaching a law school subject caught the attention of the media. A television crew visited Andy's class to document Andy's use of the Tyson proceedings as teaching material. When we were law students, we each had the good fortune to take a class from Andy, one of us in Criminal Law and the other in Evidence. Our recollections ofAndy as a teacher are vivid and remarkably similar. We recall, for example, the awe that he inspired in us and our classmates. When Andy walked into the classroom, a hush fell, books opened, and students prepared to engage in a dialogue that required precision, logic, and clarity, as well as a thorough understanding ofthe procedural and substantive issues in each assigned case. We were impressed by his ability to reduce legal issues into simple logical steps while still considering the complexities of the issues—the essence of thinking like a lawyer—and to teach us to do the same. He was adroit at drawing from students far more than they thought they knew. To us, he was the consummate law professor. We also recall as if it were yesterday the Andy Kerr exam experience—the dread before, the writer's cramp during and the elation afterwards when we learned we had received an A from Andy Kerr! More recently, we have had the good fortune to be Andy's colleagues. We know that we speak for the entire faculty when we say he has earned our deep 1 998] WILLIAM A. KERR TRIBUTE 895 respect for his service to our law school. He brought a principled approach and tireless dedication, as well as good humor, to all of his law school responsibilities, from the preparation of teaching materials to the seemingly endless task of reading admissions files. When his experience was needed, he willingly and unselfishly took on extraordinary faculty responsibilities, even in the face of publishing deadlines and other commitments. For this we will always be grateful. As is to be expected from someone with Andy's energy and enduring interest in the law, he has not ended his legal career, though he has retired from teaching. At a time in his life when most people would be seeking a quiet retirement, Andy is hanging out his shingle. His return to the practice of law is the law school's loss, but we have confidence that if we are ever in need of his wise counsel, Andy will not let us down.