Indiana Law Review Law -._-*^ ^ ounuuir V'rSCHOOe OF UlV~i/VDp/o Volume 35 No. 1 2001 TRIBUTE Professor Clyde H. Crockett: A Personal Recollection and Tribute William F. Harvey ARTICLES The 2001 Federal Economic Crime Sentencing Reforms: An Analysis and Legislative History Frank O. Bowman, III Subsidiarity as a Principle of Governance: Beyond Devolution Robert K. Vischer Are There Procedural Deficiencies in Tax Fraud Cases?: A Reply to Professor Schoenfeld Leandra Lederman Credit Crisis to Education Emergency: The Constitutionality of Model Student Voucher Programs Under the Indiana Constitution Barclay Thomas Johnson NOTES Artificial Insemination: Right of Privacy and the Difficulty in Maintaining Donor Anonymity Lucy R. Dollens Nonphysical Personal Injury Settlements and Judgments: Amending the Internal Revenue Code to Exclude Attorney Fees Paul M. Jones, Jr. The H-2A Program: How the Weight of Agricultural Employer Subsidies Is Breaking the Backs of Domestic Migrant Farm Workers Andrew Scott Kosegi The Case Against Carnivore: Preventing Law Enforcement from Devouring Privacy Peter J. Young Family In Law. In 1933, BNA first published The United States Law Week. Witb 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. Whichever publication you choose, you'll notice the family resemblance — comprehensive, accurate, in-depth coverage. 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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 of Law. 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 of Clinical Programs. B.A., Saint Xavier College; J.D., University of Iowa. R. George Wright, Professor ofLaw. A.B., University ofVirginia; Ph.D., Indiana University; J.D., Indiana University School of Law—Indianapolis. Emeriti Edward P. Archer, Professor ofLaw Emeritus. B.M.E., Renesselaer Polytechnic Institute; J.D., LL.M., Georgetown University. Agnes P. Barrett, Associate Professor ofLaw Emerita. B.S., J.D., Indiana University. Clyde Harrison Crockett, Professor of Law Emeritus. A.B., J.D., University of Texas; LL.M., University of London (The London School of Economics and Political Science). Debra a. Falender, Professor ofLaw Emerita. A.B., Mount Holyoke College; J.D., Indiana University—Indianapolis. Cleon 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 Heserve 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. V^iluamUodes, 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. 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. Kenneth M. Stroud, Professor of Law Emeritus. A.B., J.D., Indiana University — Bioomington. 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. ChrisE. Long, CatalogLibrarian. B.A., Indiana University; M.A., Indiana University; M.L.S., Indiana University. MahnazK. MoSHFEGU,Acguisition/Serials Librarian. B.A., National University ofIran; M.S., Tehran University; M.A., Ball State University; M.L.S., Ph.D., Indiana University. MiriamA. Murpuy,Associate Director ofLaw Library. B.A., Purdue University; J.D., M.L.S., Indiana University—Bioomington. KiYOSHl Otsu, Computer System Specialist. A.A., Parkland College; A.B., M.S., C.A.S., University of Illinois. Indiana Law Review Volume 35 2001 Number 1 Copyright €> 200 1 by the Trustees of Indiana University TABLE OF CONTENTS TRIBUTE Professor Clyde H. Crockett: A Personal Recollection and Tribute William F. Harvey 1 ARTICLES The 2001 Federal Economic Crime Sentencing Reforms: An Analysis and Legislative History Frank O. Bowman, III 5 Subsidiarity as a Principle of Governance: Beyond Devolution Robert K. Vischer 103 Are There Procedural Deficiencies in Tax Fraud Cases?: A Reply to Professor Schoenfeld Leandra Lederman 143 Credit Crisis to Education Emergency: The Constitutionality of Model Student Voucher Programs Under the Indiana Constitution Barclay Thomas Johnson 173 NOTES Artificial Insemination: Right of Privacy and the Difficulty in Maintaining Donor Anonymity Lucy R. Dollens 213 Nonphysical Personal Injury Settlements and Judgments: Amending the Internal Revenue Code to Exclude Attorney Fees Paul M. Jones, Jr. 245 The H-2A Program: How the Weight of Agricultural Employer Subsidies Is Breaking the Backs of Domestic Migrant Farm Workers Andrew Scott Kosegi 269 The Case Against Carnivore: Preventing Law Enforcement from Devouring Privacy Peter J. Young 303 Volume 35 Number 1 Professor Clyde H. Crockett A Personal Recollection and Tribute William F. Harvey* Professor Clyde H. Crockett retired from the law school's faculty in 2001 . Rejoined the faculty in 1973. He was an able teacher who respected students. He was a splendid faculty member because he understood the standards and criteria that establish the purpose and function of a law school as an academic institution in a community of schools and colleges called a university. His J.D. was taken at the University of Texas School of Law. He received an LL.M. from the same institution. He attended the London School of Economics. He was a Judge Advocate in the United States Air Force, and a General Attorney in the United States Maritime Commission. He was the Director ofthe International Trade Law Program in the Law School. He taught courses in Admiralty, Civil Procedure, Conflict of Laws, Federal Jurisdiction, International Civil Litigation, and International Law. We first met in the summer of 1973. He entered my office to introduce himself He was as new to legal education as I was to the law school's deanship that commenced only a few days earlier in that summer. Initial impressions are said to be the strongest. My initial impression of Clyde Crockett was strong and it did not change during the next twenty-five years. His constant personality was a delightful mixture ofcheer with discipline, a gentle impishness blended with profound respect, and wisdom undiluted by the trivia that daily pervades schools of higher education and law schools in particular. He displayed politeness, manners, and goodwill toward others who never understood those norms or delighted in repudiating them with boisterous contempt. Always, he showed kindness and compassion from the core of his being. This showing was not limited to special friends, or selected students, or to a dean who could affect his life and career. It was and is the man himself. In few words, he was genuine. He had the "right stuff." Almost fifty years ago. Justice Felix Frankfurter returned to the Harvard Law School and spoke to a graduating class. In his comments, the Justice said that the law, more than any other profession, discipline, or calling, has been concerned with those standards, those criteria, those appeals to right and reason, that have had a dominant share in begetting a civilized society. Professor Crockett was educated in these ideals and ideas. He brought them to his classroom and to the law school. He understood magnificent principles, standards, criteria, and their history. He broughtthem to an American legal educational community that had begun its disintegration into sophistic babble. Let us listen to Professor Crockett's opponents, and understand their views. Discipline? Standards? Criteria? Judgment? What are these? To today's type of realist, a postmodernist Derrida-dandy, appeals to right and reason, and a dominant share in begetting a civilized society are disgusting triumphalism! * Dean Emeritus and Carl M. Gray Emeritus Professor ofLaw, Indiana University School of Law—Indianapolis. INDIANA LAW REVIEW [Vol. 35:1 What is a civilized society? No one can say because there are no standards for such a concept. Ifyou offer ajudgment then you are merely judgmental and probably infected by DWEMs (dead white European males). If you express an opinion it cannot be superior to other opinions because there are no standards. (Well, other than this one, but do not talk about this one either). As for Felix Frankfurter —"who is he?" Constitutional Law. This subject, they announce, is the greatest ruse in a law school's curriculum. It is a course with a large, heavy, expensive book filled with cases that are valid only because the Justice orjudge who wrote the opinion received five votes, or some other form of numerical agreement. You doubt what we say? Well, then, ask one of our own: Justice William J. Brennan. He would tell you, as he told his law clerks: the only thing that matters in this Court is the most important word in Constitutional Law. That word is "five." "Look, law clerk," Brennan might say, "get me five votes, and we have the law." What a guy! What a sense of history! Such institutional integrity! Look at Criminal Law say the contemporary realists. When Professor Crockett attended law school or when he commenced teaching, the allegations state. Criminal Law was addressed in an archaic manner. People really thought in terms of crime and the moral standards that, ultimately, defined crime. That was an ancient regime. Today's law school rulers allege that crime is nothing more than the way that persons are perceived by the police, and then arrested and accused. One cannot say that an act is "criminal." Ifan act destroys property so be it because private property is theft anyway. If an act harms another person, then seek "the cause" that can be understood only in terms of poverty, dispossession, or an unequal distribution ofgoods. Ifchildren are involved, then if it is necessary to save them you may kill them. This is, was it not, the teaching of Attorney General Reno? In rebuttal, Professor Crockett might have quoted from Leroy S. Rouner who wrote that the best thing ever written on the philosophy of education is Plato's Protagoras. (Leroy S. Rouner, Resolved: That Phi Beta Kappa is Gloriously Useless, 66 THE KEY REPORTERS 1, 4-6 (2000)). Protagoras was a sophist, an ethical relativist who would teach a student how to make a speech without knowing whatjustice or the content ofthe speech really means. When a young man asks Socrates to make arrangements for this instruction, Socrates asks the crucial question: "If you study with this fellow, what will he make of you?" Rouner continues saying that this is not a question that a college dean's office will address today. In legal education, the condition is much worse than Rouner's college dean. Professor Stephen B. Presser, Raoul Berger Professor of Legal History at Northwestern University says that something has gone radically awry with legal education. (Stephen B. Presser, Can America's Legal Education Be Fixed?, Chronicles 50-53 (Jan. 2001)). Today's lawyers commonly regard the law as an infinitely malleable set of theories and doctrines that can be manipulated by judges at the prompting of clever advocates. With the triumph of legal realism at Yale and Columbia in the 1930s and 1940s, law professors (in those schools, but clearly not everywhere at that time) believed that there are no overarching 200 1 ] TRIBUTE TO CLYDE H. CROCKETT ethical—or other—principles in the law. Thus, a wholesale attack on the doctrines of constitutional law occurred. By the late Twentieth Century, prominent professors at Yale, with straight faces, could say that there was no need to amend the Constitution. A "living Constitution" can be altered simply by judges acknowledging the articulated desires of the people. Of course, Professor Presser states, "the people" are Yale law school professors. No doubt the Yale crowd had a moment of great pride when their most distinguished graduate defined reality by insisting that it depends on what the meaning of "is" is. Perhaps their greatest moment arrived when this same graduate had to plea bargain his exit from the White House in order to end his term in office without indictment. Professor Presser' s solution for reforming legal education "is to return to a required curriculum with a heavy dose ofthe history ofAmerican law." He says, "As the rule of law has eroded in recent years and the Constitution has been pummeled, it is no wonder that we have trembled on the edge of urban unrest, plunged into the crass excesses of materialism, and completely lost our moral bearings." He refers to Chief Judge Harry Edwards of the United States Court of Appeals for the District of Columbia Circuit. Professor Presser states that Judge Edwards' article in the Michigan Law Review in 1992, in which he said that law schools are obsessed with impractical theories and law firms maximizing revenues, means that both law schools and law firms have disregarded the ethical practice of law. There is much more that Professor Presser might have observed. The reaction to the criticism by Judge Edwards was entirely predictable and entirely beside the point. The reaction was (a) require more hours in legal ethics courses taught in law schools, and (b) demand that all members ofthe state's bar attend continuing legal educational classes in ethics during a calendar year. This resulted in little more than adding substantial cost burdens to the law student, whose law schools costs and incurred debt are appallingly excessive already, or the attorney, who can not afford either the time or the money. All ofthis occurs because ofnothing more than an assumed benefit. It is that the law student or the attorney will be an ethical person. The spirit ofthe thing seems to be, "take these courses or continuing legal educational courses, and then you will be ethical. Damn it!" This assumed benefit can be postulated only by disregarding the wholesale abolition of ethical standards, the dismissal of a moral order, the repudiation of ultimate social criteria, the abolition of American and British legal history, the corrosive rejection of the laws and history of organized religion(s) in a law school curriculum, and the denial of classical educational criteria that occur throughout the courses in today's law school curriculum. What a philosophy! What a basis for law! But this was not Professor Crockett's doing. These are not the principles (should one say, "non-principles") that he understood and defended in his fine career. Professor Crockett did side with Frankfurter. In his own way, he, too, maintained that law has standards and that the law, more than any other profession, discipline, or calling, has been concerned with those standards, those criteria, those appeals to right and reason, that have had a dominant share in begetting a civilized society. INDIANA LAW REVIEW [Vol. 35:1 Perhaps Professor Crockett already sensed Professor Presser's prediction: if the American law school does not change and draw upon the classical moral and religious traditions ofthe Eighteenth and Nineteenth Centuries, and recapture the benefits ofprofessional apprenticeship as a means of legal education, it may not last throughout this century. Or perhaps Professor Crockett fought the good fight and stayed the course because of the principles themselves. In my observations of him, he clearly understood what was at issue. He understood the principles and the impact that their destruction has inflicted upon the American social order. He was a splendid faculty member and I was honored to be his colleague for over twenty-five years.