Indiana Law Review %!0^L <; Indiana Law Review Volume 34 No. 2 2001 '!»'- ;ribute ° Tribute to Professor June Starr ./ David RaiSmt^ x ARTICLES ERISA's Preemption Clause: Progress Towards a More Equitable Preemption of State Laws Larry J. Pittman The Neglected History of the Prior Restraint Doctrine: Rediscovering the Link Between the First Amendment and the Separation of Powers Michael I. Meyerson Father (or Mother) Knows Best: An Argument Against Including Post-Majority Educational Expenses in Court-Ordered Child Support Judith G. McMullen Rethinking the Federal Reserve System: A Monetarist Plan for a More Constitutional System of Central Banking Michael Wade Strong McDONALD-MERRILL-KETCHAM LECTURE The Backlash Against Managed Health Care: Hard Politics Make Bad Policy Clark C. Havighurst NOTES Is Hamilton v. Accu-tek a Good Predictor of What the Future Holds for Gun Manufacturers? Jill R. Baniewicz Standing to Appeal: Should Objecting Shareholders Be Allowed to Appeal Acceptance of a Settlement? Kenneth J. Munson Casting the Discovery Net Too Wide: Defense Attempts to Disclose Nonparty Medical Records in a Civil Action Danel Michelle Nickels ERISA Disclosure Decisions: A Pyrrhic Victory for Disclosure Advocates Eugene P. Schulstad 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: Family Law Reporter; BNA's Bankruptcy Law Reporter; Business Law Adviser; Corporate Governance Report; Mergers & Acquisitions Law Report; BNA's Patent, Trademark & Copyright Journal; and Criminal Law Reporter. 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BEPKO, Vice-Presidentfor Long-Range Planning, Indiana University; Chancellor, Indiana University-Purdue University at Indianapolis and Professor ofLaw. J.D., ITT/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 and Professor of Law. B.S., J.D., University of Nebraska; LL.M., New York University. SUSANAH M. MEAD, Associate Deanfor Academic Affairs and Professor ofLaw. B.A., Smith College; J.D., Indiana University—Indianapolis. CYNTHIA BAKER, Director, Program on Law and State Government. B.A., J.D., Valparaiso University. ELIZABETH L. DeCoux, Assistant Deanfor Student Affairs. J.D., Mississippi College School of Law. ANGELA M. ESPADA, Assistant Deanfor Admissions. J.D., Indiana University—Bloomington. JONNA M. KANE, Assistant Deanfor External Affairs. J.D., Indiana University—Indianapolis. SHANNON L. WILLIAMS, Director ofCareer Services. B.S., Indiana University—Indianapolis. JONI D. THOMPSON, Assistant Deanfor Development. M.A., Ball State University. Faculty Cynthia M. Adams, Lecturer in Law. B.A., Kentucky Wesleyan College; J.D., Indiana University— Indianapolis. 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 ofLaw. B.M.E., Renesselaer Polytechnic Institute; J.D., LL.M., Georgetown University. JAMES F. BAILEY, III, Professor ofLaw and Director ofLaw Library. A.B., J.D., M.A.L.S., University of Michigan. GERALDL. BEPKO, Vice Presidentfor Long-Range Planning. ChancellorandProfessor ofLaw. B.S., Northern Illinois University; J.D., ITT/Chicago-Kent College of Law; LL.M., Yale University. Frank Bowman, Associate Professor ofLaw. B.A., Colorado College; J.D., Harvard Law School. ROBERT BROOKINS, Professor ofLaw. B.S., University of South Florida; J.D., Ph.D., Cornell University. Daniel H. Cole, M. Dale Palmer Professor of Law. A.B., Occidental College; A.M., University of Chicago; J.D., Lewis and Clark College; J.S.M., J.S.D., Stanford Law School. JEFFREY O. COOPER, Assistant Professor ofLaw. A.B., Harvard University; J.D., University of Pennsylvania. PAUL N. Cox, Centennial Professor ofLaw. B.S., Utah State University; J.D., University of Utah; LL.M., University of Virginia. KENNETHD . CREWS,Associate Dean ofthe Facultiesfor CopyrightManagement andProfessor 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). JAMES D. DlMlTRl, Lecturer in Law. B.S., Indiana University; J.D., Valparaiso University School of Law. GEORGE E. EDWARDS, Associate Professor of Law and Director Program in International Human Rights Law. B.A., North Carolina State University; J.D., Harvard Law School. PAUL J. GALANTI, Professor ofLaw. A.D., Bowdoin College; J.D., University of Chicago. HAROLD GREENBERG, Professor of Law. 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 Associate Professor ofLaw. B.S., Ball State University; J.D., Indiana University—Indianapolis. 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 ofLaw. A.B., J.D., LL.M., University of Illinois. ELEANOR D. KINNEY, Samuel R. Rosen Professor ofLaw and Co-Director ofthe Centerfor Law and Health. B.A., Duke University; M.A., University of Chicago; J.D., Duke University; M.P.H., University ofNorth Carolina. Andrew R. KLEIN, Professor ofLaw. B.A., University of Wisconsin; J.D., Emory University School of Law. Norman LEFSTEIN, Dean and Professor of Law. LL.B., University of Illinois; LL.M., Georgetown University. LYNN A. MCDOWELL, Clinical Associate Professor of Law. B.S., Indiana University; J.D., Indiana University—Indianapolis. DEBORAH MCGREGOR, Lecturer in Law and Assistant Director of Legal Writing. B.A., University of Evansville; J.D., Georgetown University. SUSANAH M. MEAD, Associate Dean and Professor ofLaw. B.A., Smith College; J.D., Indiana University—Indianapolis. Mary H. Mitchell, Professor ofLaw. A.B., Butler University; J.D., Cornell Law School. JAMES P. NEHF, Cleon H. Foust Fellow and Professor of Law. B.A., Knox College; J.D., University of North Carolina. David Orentlicher, Samuel R. Rosen Professor ofLaw and Co-Director ofthe Centerfor Law and Health. A.B., Brandeis University; J.D., M.D., Harvard College. Joanne Orr, Clinical Associate Professor of Law. 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 ofNorth Carolina; LL.M., Yale University. FLORENCE Wagman ROISMAN, Professor of Law. B.A., University of Connecticut; LL.B., Harvard Law School. RICHARD J. Ross, Associate Professor ofLaw. B.A., J.D., Ph.D., Yale University. JOAN M. RUHTENBERG, Clinical Professor of Law and Director of Legal Writing. B.A., Mississippi University for Women; J.D., Indiana University—Indianapolis. E. Gary Spitko, Associate Professor ofLaw. A.B., Cornell University; J.D., Duke University Law School. James W. TORKE, Carl M. Gray Professor ofLaw. B.S., J.D., University of Wisconsin. 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. LLOYD T. Wilson, Jr., Lecturer in Law. B.A., Wabash College; M.A., Duke University; J.D., Indiana University—Bloomington. MARY T. WOLF, Clinical Professor ofLaw and Director ofClinical Programs. B.A., Saint Xavier College; J.D., University of Iowa. Emeriti AGNES P. BARRETT, Associate Professor ofLaw Emerita. B.S., J.D., Indiana University. Debra A. Falender, Professor ofLaw Emerita. A.B., Mount Holyoke College; J.D., Indiana University—Indianapolis. Cloen H. Foust, Professor of Law 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 of Law Emerita. B.S.J., Northwestern University; J.D., University of Colorado. WILLIAM F. HARVEY, Carl M. Gray Professor ofLaw & Advocacy Emeritus. A.B., University of Missouri; J.D., LL.M., Georgetown University. W. William Hodes, Professor ofLaw Emeritus, A.B., Harvard College; J.D., Rutgers, Newark. WILLIAM ANDREW KERR, Professor of Law Emeritus. A.B., West University; J.D., LL.M., Harvard University; B.S., Duke University. WALTER W. KRIEGER, Jr., Associate Professor ofLaw Emeritus. A.B., Bellarmine College; J.D., University of Louisville; LL.M., George Washington University. William E. Marsh, Professor ofLaw Emeritus. B.S., J.D., University of Nebraska. 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 ofLaw Emeritus. B.S., Eastern Illinois University; LL.B., University of Illinois. JUNE O. STARR, Associate Professor ofLaw Emerita. 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 Emeritus. A.B., J.D., Indiana University — Bloomington. Law Library Faculty JAMES F. BAILEY, III, Professor and Director ofLaw Library. A.B., J.D., M.A.L.S., University of Michigan. 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. 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. MIRIAM A. MURPHY, Associate Director ofLaw Library. B.A., Purdue University; J.D., M.L.S., Indiana University—Bloomington. KiYOSHl OTSU, Computer System Specialist. A.A., Parkland College; A.B., M.S., C.A.S., University of Illinois. Indiana Law Review Volume 34 2001 Number 2 Copyright © 2001 by the Trustees of Indiana University TABLE OF CONTENTS TRIBUTE Tribute to Professor June Starr David Ray Papke 203 ARTICLES ERISA's Preemption Clause: Progress Towards a More Equitable Preemption of State Laws Larry J. Pittman 207 The Neglected History of the Prior Restraint Doctrine: Rediscovering the Link Between the First Amendment and the Separation of Powers Michael I. Meyerson 295 Father (or Mother) Knows Best: An Argument Against Including Post-Majority Educational Expenses in Court-Ordered Child Support Judith G. McMullen 343 Rethinking the Federal Reserve System: A Monetarist Plan for a More Constitutional System of Central Banking Michael Wade Strong 371 LECTURE The Backlash Against Managed Health Care: Hard Politics Make Bad Policy Clark C. Havighurst 395 NOTES Is Hamilton v. Accu-tek a Good Predictor of What the Future Holds for Gun Manufacturers? Jill R. Baniewicz 419 Standing to Appeal: Should Objecting Shareholders Be Allowed to Appeal Acceptance of a Settlement? Kenneth J. Munson 455 Casting the Discovery Net Too Wide: Defense Attempts to Disclose Nonparty Medical Records in a Civil Action Danel Michelle Nickels 479 ERISA Disclosure Decisions: A Pyrrhic Victory for Disclosure Advocates Eugene P. Schulstad 501 Volume 34 Number 2 June Starr Indiana Law Review Volume 34 2001 Number 2 TRIBUTE Tribute to Professor June Starr David Ray Papke* June Starr retired from the School ofLaw faculty during the summer of2000. She joined the faculty as an Associate Professor of Law in 1994 and was promoted to Professor ofLaw shortly before her retirement. During her years in Indianapolis, Professor Starr taught large courses in the family law and environmental law areas as well as specialized seminars involving anthropology and the law, the law of children, and international law. Professor Starr enriched the School of Law in countless ways, and by reflecting at the time of her retirement on her major contributions, we might be better able to make those contributions a living part of the institution's future. I. A Sense of Academic Adventure To begin with, Professor Starr brought to the School of Law a tremendous openness to and excitement regarding the full range ofacademic and intellectual experiences. Trained as a cultural anthropologist at Columbia University (M.A., 1961) and the University of California—Berkeley (Ph.D., 1970), she rose through the ranks to become a Full Professor of Anthropology at the State University ofNew York in Stony Brook. During leaves from Stony Brook, she served as a Fulbright Professor at the Indian Law Institute in New Delhi and at the Ankara Law School in Ankara, Turkey. From 1981-83, she was also a Professor of Sociology at the University ofRotterdam's Erasmus Law School in Holland. In these places and pursuits she participated in dialogues with a world community of scholars and thinkers. In much the same way that Professor Starr reached from the United States to experiences in other parts ofthe world, she reached within the United States from her first discipline ofanthropology to other paradigms and perspectives. She was one of the founding figures in the Law and Society Association, an umbrella organization for scholars in the social sciences with an interest in law and legal issues. Fortunately for the Indiana University School of Law—Indianapolis, Professor Starr found that the discipline of law in and of itself was of great interest. Hence, she spent a year in the Yale Law School's prestigious Law and * R. Bruce Townsend Professor ofLaw, Indiana University School ofLaw—Indianapolis; Professor of Liberal Arts, Indiana University-Purdue University at Indianapolis. A.B., 1969, Harvard College; J.D., 1973, Yale Law School; Ph.D. in American Studies, 1984, University of Michigan. 204 INDIANA LAW REVIEW [Vol. 34:203 Modernization Program and then earned degrees in law at Yale (M.S.L., 1990) and Stanford (J.D., 1992). Professor Starr's amazing curiosity and ambitiousness led to a wealth of contacts, a good number ofwhom lectured at the School ofLaw during Professor Starr's years in Indianapolis. More fundamentally, she superbly represented the questing and exploring which can be the heart of academic life. She was an antidote to the tendency to stay at home, both physically and intellectually. She was our leading adventurer. II. Contextual Jurisprudence Not surprisingly given Professor Starr's abundance of international and interdisciplinary experiences, she developed a distinctive understanding of the law, and this understanding enlivened the School of Law. Stated simply, Professor Starr thought law was best understood in a cultural, political and historical context. Put in reverse terms, she gave little truck to the old idea that law should be understood as an autonomous discipline. Thinking of law as something existing merely onto itself, in her opinion, was something of a "false consciousness," one which might be seductive for a secular priesthood of practicing lawyers but one which could never produce critical and enduring thought about law. Professor Starr's understanding oflaw is particularly evident in her scholarly publications. These include literally dozens of reviews, essays and articles as well as three superb book-length studies. Two of the books, Dispute and Settlement in Rural Turkey: An Ethnography of Law (1978) and Law as Metaphor: From Islamic Courts to the Palace of Justice (1992), established Professor Starr as the United States' leading expert on Turkish law and legal system s. The third book, History andPower in the Study ofLaw ( 1 989, co-edited with Jane Collier), included Professor Starr's own work as well as that of a distinguished group of scholars. Any reader of these works can see clearly Starr's forceful intellect, her sensitivity to nuance and contradictions, and her boldness regarding law's cultural, political and historical characteristics. Professor Starr, it should be underscored, brought her understanding of the law into her classrooms as well. Many professors fully appreciate the sociohistorical features of law in their private thought and publications but take the easier route of authoritatively serving up legal rules, corollaries and exceptions in their classes. But this was not Professor Starr's approach. She is to be commended for insisting in the classroom that great lawyers appreciate the ways law dwells within culture, politics and history. The great sociolegal jurists who helped dethrone formalist legal thought—Holmes, Cardozo, Brandeis—surely smiled down on Professor Starr as she taught. III. Self-Reflection and Critique When one has a spirit of academic adventure and when one appreciates law in contextual ways, it is perhaps inevitable that one will also stop to evaluate and appraise one's social situation. Professor Starr, we can note happily, was blessed with a knack for self-reflection. She had the ability and the willingness to 200 1 ] TRIBUTE TO JUNE STARR 205 critique the sprawling edifice of legal education and the particular structure called the Indiana University School of Law—Indianapolis. Day in and day out Professor Starr was a source of insight about our law school. In a friendly and constructive way, she told us what we did right and what we did wrong. She saw the faculty, student body, and administration in an especially bright light, and we all profited from her perceptions. One case in point: Starr knew that all primate societies were complicated by "greybacks," that is, senior males of the species. More important than the grey hair growing on their upper-backs is the "greyback" tendency to fuss and fume, to fight over turf, and to cause a ruckus. Human "greybacks" have much in common with their counterparts among the chimps and gorillas, and the law school faculty has no shortage of "greybacks"—alas, the author of this tribute included. IV. The Road Ahead Since her retirement, Professor Starr has returned to the house she occupied during her years on the State University of New York at Stony Brook faculty. Built on a bluff overlooking the Long Island Sound, her home is truly beautiful and also in close proximity to her son, Turkish daughter-in-law and grandson, who live in Manhattan. Professor Starr is comfortable in her surroundings, and, as her recent legal actions involving the arbitrary conduct of local zoning officials suggest, she remains more active than the notion of retirement might imply. Locally, we have to shout out with thankfulness that Professor Starr spent the latter stages of her academic career in Indianapolis. Her willingness to explore the full range ofacademic experiences, her contextual understanding of law, and her facility for self-reflection and critique enriched the Indiana University School ofLaw—Indianapolis more than words could ever express. We were incredibly fortunate to have this warm and wonderful woman in our midst, and in the years ahead, we will benefit by recalling what she kindly shared with us.