Indiana Law Review liana iw eview Volume 35 No. 3 2002 TRIBUTE Tribute to Edward P. Archer William Marsh NATIONAL SYMPOSIUM ON JUDICIAL CAMPAIGN CONDUCT AND THE FIRST AMENDMENT CONTRIBUTORS Jan Witold Baran Robert F. Bauer Lillian R. BeVier Richard Briffault Anthony Champagne Erwin Chemerinsky Stephen Gillers Deborah Goldberg Shanto Iyengar Mark Kozlowski Steven Lubet Robert M. O'Neil Barbara Reed Roy A. Schotland ARTICLES Responding to the Perversion of In Loco Parentis: Using a Nonprofit Organization to Support Student-Athletes W. Burlette Carter Quieting the Guilty and Acquitting the Innocent: A Close Look at a New Twist on the Right to Silence Gordon Van Kessel BOOK REVIEWS Moral Principles and Legal Practice Leslie Pickering Francis A Democracy for the Pursuit of Happiness David Ray Papke NOTES The Development of the Undue Burden Standard in Stenberg v. Carhart: Will Proposed RU-486 Legislation Survive? Hilary Guenther Restoring Civility- -the Civil Asset Forfeiture Reform Act of 2000: Baby Steps Towards a More Civilized Civil Forfeiture System Barclay Thomas Johnson The Emergence of Divergence: The Federal Court's Struggle to Apply Heck v. Humphrey to § 1983 Claims for Illegal Searches Paul D. Vink 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 ys 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. 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GROVE, Associate Dean, Professor ofLaw, andDirector, China Summer Program. A.B., Juniata College; J.D., George Washington 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. 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. 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. Chancellor andProfessor ofLaw. B.S., Northern Illinois University; J.D., ITT/Chicago-Kent College of Law; LL.M., Yale University. FRANK BOWMAN, Associate Professor of Law. 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, hi. 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. KENNETH D. CREWS,Associate Dean ofthe Facultiesfor CopyrightManagementandProfessor 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. JAMES D. Dimitri, Lecturer in Law. B.S., Indiana University; J.D., Valparaiso University School of Law. JENNIFER ANN DROBAC, Associate Professor ofLaw. B.A., M.A., Stanford University; J.D., J.S.D., Stanford Law School. GEORGE E. EDWARDS, Associate Professor ofLaw 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.B., Bowdoin College; J.D., University of Chicago. HAROLD Greenberg, Professor of Law. A.B., Temple University; J.D., University of Pennsylvania. JEFFREY W. GROVE, Associate Dean, Professor ofLaw, andDirector, China Summer Program. 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. ROBERT A. KATZ, Associate Professor of Law. A.B., Harvard College; J.D., University of Chicago Law School. ELEANOR D. KINNEY, Samuel R. Rosen Professor ofLaw and Co-Director of the Centerfor Law and Health. B.A., Duke University; M.A., University of Chicago; J.D., Duke University; M.P.H., University of North Carolina. Andrew R. KLEIN, Professor ofLaw. B.A., University of Wisconsin; J.D., Emory University School of Law. ROBERT E. LANCASTER, Clinical Associate Professor ofLaw. B.A., Millsaps College; J.D., Tulane Law School. NORMAN LEFSTEIN, Dean and Professor of Law. LL.B., University of Illinois; LL.M., Georgetown University. GerardN. MAGUOCCA, Assistant Professor ofLaw. B.A., Stanford University; J.D., Yale Law School. Lynn A. MCDOWELL, Clinical Associate Professor of Law. B.S., Indiana University; J.D., Indiana University—Indianapolis. DEBORAHMCGREGOR, Lecturer in Law andAssistant Director ofLegalAnalysis, Research and Communication. 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, Professor of Law, and Director, European Law Program. 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. H. Kathleen Patchel, Associate Professor of Law. A.B., Huntington College; J.D., University of North Carolina; LL.M., Yale University. FLORENCE WAGMAN ROISMAN, Paul Beam Fellow and Professor ofLaw. B.A., University of Connecticut; LL.B., Harvard Law School. JOAN M. Ruhtenberg, Clinical Professor ofLaw and Director ofLegal Analysis, Research and Communication. B.A., Mississippi University for Women; J.D., Indiana University—Indianapolis. JOEL M. Schumm, Lecturer in Law. B.A., Ohio Wesleyan University; M.A., University of Cincinnati; J.D., Indiana University School of Law—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 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 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.WiLUAMHODES,ProfessorofLaw Emeritus, A.B., Harvard College; J.D., Rutgers, Newark. WILLIAM ANDREW KERR, Professor ofLaw 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 — 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. Mo$HFEGH,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 35 2002 Number 3 Copyright © 2002 by the Trustees of Indiana University TABLE OF CONTENTS TRIBUTE Tribute to Edward P. Archer William Marsh i NATIONAL SYMPOSIUM ON JUDICIAL CAMPAIGN CONDUCT AND THE FIRST AMENDMENT The Way Forward: Lessons from the National Symposium on Judicial Campaign Conduct and the First Amendment 649 Myth, Reality Past and Present, and Judicial Elections Roy A. Schotland 659 Television Ads in Judicial Campaigns Anthony Champagne 669 The Effects of Media-Based Campaigns on Candidate and Voter Behavior: Implications for Judicial Elections Shanto Iyengar 691 The Canons in the Courts: Recent First Amendment Rulings Robert M. O 'Neil 70 1 "If Elected, I Promise [ ]"—What Should Judicial Candidates Be Allowed to Say? Stephen Gillers 725 Restrictions on the Speech of Judicial Candidates Are Unconstitutional Erwin Chemerinsky 735 Thoughts on the Democratic Basis for Restrictions on Judicial Campaign Speech Robert F. Bauer 141 Constitutional Issues in Disclosure of Interest Group Activities Deborah Goldberg 755 Mark Kozlowski Compelled Disclosure of Independent Political Speech and Constitutional Limitations Jan Witold Baran 769 Judicial Campaign Conduct Committees Barbara Reed 781 Roy A. Schotland Judicial Campaign Conduct Committees: Some Reservations About an Elegant Solution Steven Lubet 807 Public Funds and the Regulation of Judicial Campaigns Richard Briffault 8 1 9 A Commentary on Public Funds or Publicly Funded Benefits and the Regulation of Judicial Campaigns Lillian R. BeVier 845 ARTICLES Responding to the Perversion of In Loco Parentis: Using a Nonprofit Organization to Support Student-Athletes W. Burlette Carter 85 1 Quieting the Guilty and Acquitting the Innocent: A Close Look at a New Twist on the Right to Silence Gordon Van Kessel 925 BOOK REVIEWS Moral Principles and Legal Practice Leslie Pickering Francis 989 A Democracy for the Pursuit of Happiness David Ray Papke 1 005 NOTES The Development of the Undue Burden Standard in Stenberg v. Carhart: Will Proposed RU-486 Legislation Survive? Hilary Guenther 1021 Restoring Civility—the Civil Asset Forfeiture Reform Act of 2000: Baby Steps Towards a More Civilized Civil Forfeiture System Barclay Thomas Johnson 1 045 The Emergence of Divergence: The Federal Court's Struggle to Apply Heck v. Humphrey to § 1983 Claims for Illegal Searches Paul D. Vink 1085 Volume 35 Number 3 Tribute to Edward P. Archer William Marsh* Professor Ed Archer has been a leading figure in labor education in the Midwest for a generation. As a classroom teacher at Indiana University School ofLaw—Indianapolis, a labor arbitrator for nearly as long, and the co-chair and moving force behind the Annual Labor/Management Relations Seminar cosponsored by the law school and the National Labor Relations Board for twenty years, Ed Archer strongly influenced labor relations and labor law in Indiana and the region. Professor Archerjoined the faculty ofthe law school in 1968 after serving as a legal assistant to a member of the National Labor Relations Board, practicing labor law at Foley & Lardner in Milwaukee, Wisconsin, and teaching legal writing at the University ofMichigan Law School. During his career, Professor Archer was first and foremost a teacher. For most of his tenure at the law school, Professor Archer was the only member of the faculty who taught labor law. An Indianapolis labor lawyer said, "Ed was a skilled teacher who intertwined the legal and practical aspects of labor law which made his courses very interesting." Professor Archer's classes and his enthusiasm for labor law led many of his students to pursue a career in labor law, and, when they did, he "championed his students in the job market." Law students recognized his outstanding teaching by awarding him the Black Cane Award as the most outstanding professor. Some former students, now labor lawyers, recently honored him by designating their $1000 per semester labor law award as the "Edward P. Archer Labor Law Award." In retirement, Professor Archer continues to teach fifth grade students whom he tutors in math at Indianapolis Public School No. 43. The Annual Labor/Management Relations Seminar has brought the law school and the labor relations community together for the past twenty years. Each year approximately 600 lawyers, union leaders, business executives, and government officials meet for a day-long seminar in Indianapolis. In addition to helping participants keep abreast ofdevelopments in labor law and providing an opportunity for these diverse groups to meet and discuss topics of mutual interest, the seminar was a free educational opportunity for law students and raised money for law school scholarships for disadvantaged law students. Professor Archer was instrumental in beginning the seminar and organized it each year with yeoman support from his long-time assistant, Joyce Sanders. Ed Archer is widely recognized as one of the leading arbitrators in the Midwest; his work respected by litigants and lawyers on both sides of the labor law divide. "His even-keeled temperament at arbitration hearings and thoughtful approach in his decisions cause him to be sought out," according to a former student of Professor Archer's who has been a labor lawyer in Indianapolis for twenty-five years. Professor Archer has been a member ofthe National Academy of Arbitrators since 1979; he is a charter member ofthe Society ofProfessionals * Professor Emeritus, Indiana University School of Law—Indianapolis; former federal defender for the U.S. District Court for the Southern District of Indiana. B.S., 1965; J.D., 1968, University of Nebraska. ii INDIANA LAW REVIEW [Vol. 35 in Dispute Resolution; and he is a member of the Federal Mediation and Conciliation Service Arbitrators Panel. Professor Archer, a native ofBaltimore, Maryland, was awarded a bachelor's degree ofmechanical engineering from Renssealaer Polytechnic Institute in 1 95 8, and received J.D. (1962) and LL.M. (1964) degrees from the Georgetown Law Center. He and his wife, Judith, were married in 1958; they have three children and six grandchildren. "If I had to sum Ed up in one sentence," a senior labor lawyer said, "it would be: an exceptional teacher and wonderful person who left his imprint on many a law student who became a successful lawyer."