Indiana Law Review Indiana Law riodical Hection Review Volume 40 No. 2 2007 ARTICLES Blaming the Mirror: The Restatements and the Common Law Kristen DavidAdams Flipping a Coin: A Solution for the Inherent Unreliability of Eyewitness Identification Testimony Noah Clements Implementing Rapanos—Will Justice Kennedy's Significant Nexus Test Provide a Workable Standard for Lower Courts, Regulators, and Developers? Bradford C. Mank Standard Setting, Patents, and Access Lock-In: RAND Licensing and the Theory of the Firm Joseph Scott Miller NOTES The Learned Intermediary Doctrine: An Efficient Protection for Patients, Past and Present Jennifer Girod University Liability When Students Commit Suicide: Expanding the Scope of the Special Relationship Heather E. Moore You Can't Win 'Em All: How the NCAA's Dominance of the College Basketball Postseason Reveals There Will Never Be an NCAA Football Playoff Eric Thieme * INDIANA UNIWffeSW^"*SCHOOL OF LAW ,,,, _ n °00/ Indianapolis IUPUI SCHOOL OF IAW-INDPL! LIBRARY BNA's Law School Program Multiple platforms, more choices —for staff and students. Delivery of timely information is one of the cornerstones of BNA's success. Now, BNA delivers services electronically, through IP authentication, to all law school faculty staff and their students. By subscribing to any of four law school-wide electronic packages or building your own custom package, you can give your students access to the same valuable information as practicing attorneys. They'll conduct research and follow changes in the law in the same way senior partners do. Your students will not only be prepared for internships and clerkships, they'll be better equipped for any job. 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B.S., J.D., University of Nebraska; LL.M., New York University School of Law. ANGELA M. ESPADA, Associate Dean for Student Services. J.D., Indiana University School of Law—Bloomington. JEFFREY W. GROVE, Associate Deanfor Graduate Studies and Professor ofLaw. A.B., Juniata College; J.D., George Washington University Law School. ANDREW R. Klein, Associate DeanforAcademic Affairs and Paul E. Beam Professor ofLaw. B.A., University of Wisconsin; J.D., Emory University School of Law. JONNA Kane MacDougall, Assistant Dean for Institutional Advancement. J.D., Indiana University School of Law—Indianapolis. TERESA (TERRI) J. CUELLAR, Director of Technology Services. B.S., St. Bonaventure University, New York. VIRGINIA MARSCHAND, Director ofAdministration and Finance. B.A., Indiana University — Kokomo; M.P.A., Indiana University-Purdue University—Indianapolis; J.D., Indiana University School of Law—Indianapolis. CLAIRE GROVE, Director of the LL.M. Program. B.A., Indiana University; J.D., Indiana University School of Law—Indianapolis. Patricia Kimberly Kinney, Director ofAdmissions. B.S., Purdue University; J.D., Indiana University School of Law—Indianapolis. AMANDA Kamman, Acting Director ofDevelopment. B.A., Indiana University. HEATHER McCabe, Director, Public Health Law Program, William S. and Christine S. Hall Centerfor Law and Health and Grant Specialist. B.A., 1993, Indiana University — Bloomington; M.S.W., 1996, Indiana University School of Social Work — Indianapolis; J.D., 2003, Indiana University School of Law—Indianapolis. Chastity Thompson Adewopo, Director of Professional Development. B.S., Indiana University. Faculty CYNTHIA M. ADAMS, Clinical Associate Professor ofLaw. B.A., Kentucky Wesleyan College; J.D., Indiana University School of Law—Indianapolis. THOMAS B. ALLINGTON, Associate Dean for Technology and Professor of Law. B.S., J.D., University of Nebraska; LL.M., New York University School of Law. JUDITH FORD ANSPACH, Professor ofLaw and Director, Ruth Lilly Law Library. B.S., M.L.S., Kent State University; J.D., Mississippi College School of Law. CYNTHIABaker,Associate Clinical Professor ofLaw and Director, Program on Law and State Government. B.A., J.D., Valparaiso University. GERALDL.BEPKO, Indiana University-Purdue University—Indianapolis Chancellor Emeritus, Indiana University Trustee Professor and Professor ofLaw. B.S., Northern Illinois University; J.D., ITT/Chicago-Kent College of Law; LL.M., Yale Law School. KAREN E. Bravo, Assistant Professor Law. B.A., The University of the West Indies; J.D., Columbia University School of Law; LL.M., New York University School of Law. ROBERT BROOKINS, Professor ofLaw. B.S., University of South Florida; J.D., Ph.D., Cornell University. Kenneth D. Chester, Clinical Associate Professor of Law. B.A., Pennsylvania State University; J.D., University of Pittsburgh School of Law. Daniel H. COLE, R. Bruce Townsend Professor of Law. A.B., Occidental College; A.M., University of Chicago; J.D., Lewis and Clark Law School; J.S.M., J.S.D., Stanford Law School. Jeffrey O. Cooper, Associate Professor ofLaw. A.B., Harvard University; J.D., University of Pennsylvania Law School. PaulN. Cox, Centennial Professor of Law. B.S., Utah State University; J.D., University of Utah College of Law; LL.M., University of Virginia School of Law. KENNETH D. CREWS, Associate Dean of the Facultiesfor Copyright Management; Samuel R. Rosen Professor of Law and Professor of Library and Information Science. B.A., Northwestern University; J.D., Washington University School of Law; M.L.S., University of California, Los Angeles; Ph.D., University of California, Los Angeles. JAMES D. DIMITRI, Clinical Associate Professor of Law. B.S., Indiana University; J.D., Valparaiso University School of Law. JENNIFER Ann DROBAC, Associate Professor of Law. B.A., M.A., Stanford University; J.D., J.S.D., Stanford Law School. GEORGE E. Edwards, Professor ofLaw and Director, Program in International Human Rights Law. B.A., North Carolina State University; J.D., Harvard Law School. FRANK EMMERT, John S. Grimes Professor of Law and Executive Director, Center for International and Comparative Law. Erstes Juristisches Staatsexamen (J.D.), University of Munich Law School; LL.M., The University of Michigan Law School; Ph.D., University of Maastricht; Diploma, European University Institute. NICHOLAS GEORGAKOPOULOS, Professor ofLaw. Ptyhion Nomikis, Athens University School of Law; LL.M., S.J.D., Harvard Law School. JEFFREY W. Grove, Associate Dean and Professor ofLaw. A.B., Juniata College; J.D., George Washington University Law School. Frances Watson Hardy, Clinical Associate Professor ofLaw. B.S., Ball State University; J.D., Indiana University School of Law—Indianapolis. LINDA KELLY HILL, Professor ofLaw. B.A., J.D., University of Virginia. John Lawrence Hill, Professor of Law. B.A., Northern Illinois University; J.D., Ph.D., Georgetown University. LAWRENCE A. JEGEN, III, Thomas F. Sheehan Professor of Tax Law and Policy. A.B., Beloit College; J.D., M.B.A., The University of Michigan; LL.M., New York University School of Law. HENRY C. Karlson, Professor of Law. A.B., J.D., LL.M., University of Illinois College of Law. ROBERT A. Katz, Associate Professor of Law. A.B., Harvard College; J.D., University of Chicago Law School. ELEANOR D. KINNEY, Hall Render Professor ofLaw; Co-Director of the Centerfor Law and Health and Executive Director, Latin American Law Program. B.A., Duke University; M.A., University of Chicago; J.D., Duke University School of Law; M.P.H., University of North Carolina. ANDREW R. Klein, Associate Dean and Paul E. Beam Professor ofLaw. B.A., University of Wisconsin; J.D., Emory University School of Law. ROBERT E. Lancaster, Clinical Associate Professor of Law. B.A., Millsaps College; J.D., Tulane Law School. NORMANLEFSTEIN, Professor ofLaw andDean Emeritus. LL.B., University of Illinois College of Law; LL.M., Georgetown University Law School. MARIA PABON LOPEZ, Assistant Professor of Law and Co-Director, Latin American Law Program. B.A., Princeton University; J.D., University of Pennsylvania Law School. GerardN.MAGUOCCA,Associate Professor ofLaw. B.A., Stanford University; J.D., Yale Law School. ALLISON MARTIN, Clinical Associate Professor Law. B.S., J.D., University of Illinois. DEBORAH McGregor, Clinical Associate Professor ofLaw and Assistant Director ofLegal Analysis, Research and Communication. B.A., University of Evansville; J.D., Georgetown University Law School. Mary H. Mitchell, Alan H. Cohen Professor ofLaw. A.B., Butler University; J.D., Cornell Law School. Novella Nedeff, Clinical Associate Professor ofLaw. B.A., J.D., Indiana University. JAMES P. NEHF, Cleon H. Foust Fellow and Professor ofLaw and Director, European Law Program. B.A., Knox College; J.D., University of North Carolina Law School. David ORENTLICHER, Samuel R. Rosen Professor ofLaw and Co-Director of the 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 School of Law. ANTONY PAGE, Assistant Professor of Law. B. Comm., McGill University; M.B.A., Simon Fraser University; J.D., Stanford Law School. MICHAEL J. PITTS, Associate Professor of Law. B.S.J., Northwestern University; J.D., Georgetown University Law Center. H. Kathleen Patchel, Associate Professor of Law. A.B., Huntington College; J.D., University of North Carolina Law School; LL.M., Yale Law School. Florence Wagman Roisman, William F. Harvey Professor of Law. B.A., University of Connecticut; LL.B., Harvard Law School. JOAN M. Ruhtenberg, Clinical Professor ofLaw and Director of Legal Analysis, Research and Communication. B.A., Mississippi University for Women; J.D., Indiana University School of Law—Indianapolis. JOELM. SCHUMM, Clinical Associate Professor ofLaw. B.A., Ohio Wesleyan University; M.A., University of Cincinnati; J.D., Indiana University School of Law—Indianapolis. Lawrence P. Wdlkins, William R. Neale Professor ofLaw. B.A., The Ohio State University; J.D., Capital University Law School; LL.M., University of Texas School of Law. LLOYD T. WILSON, Jr., Associate Professor of Law and Director, Central and Eastern European Law Program. B.A., Wabash College; M.A., Duke University; J.D., Indiana University School of Law—Bloomington. Mary T. Wolf, Clinical Professor of Law and Director of Clinical Programs. B.A., Saint Xavier College; J.D., University of Iowa College of Law. R. GEORGE WRIGHT, Lawrence A. Jegen III Professor of Law. A.B., University of Virginia; Ph.D., Indiana University; J.D., Indiana University School of Law—Indianapolis. Emeriti Faculty EDWARD P. ARCHER, Professor ofLaw Emeritus. B.M.E., Renesselaer Polytechnic Institute; J.D., LL.M., Georgetown University Law School. JAMES F. BAILEY, III, Professor of Law Emeritus. A.B., J.D., M.A.L.S., The University of Michigan. 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 School of Law—Indianapolis. DAVID A. FUNK, Professor of Law Emeritus. A.B., College of Wooster; J.D., Case Western Reserve University School of Law; M.A., The Ohio State University; LL.M., Case Western Reserve University; LL.M., Columbia Law School. PAUL J. GALANTI, Professor of Law Emeritus. A.B., Bowdoin College; J.D., University of Chicago Law School. Helen P. Garfield, Professor of Law Emerita. B.S.J., Northwestern University; J.D., University of Colorado School of Law. HAROLD GREENBERG, Professor ofLaw Emeritus. A.B., Temple University; J.D., University of Pennsylvania Law School. WILLIAM F. Harvey, Carl M. Gray Professor ofLaw & Advocacy Emeritus. A.B., University of Missouri; J.D., LL.M., Georgetown University Law School. W. WILLIAM Hodes, Professor of Law Emeritus, A.B., Harvard College; J.D., Rutgers University School of Law—Newark. William Andrew Kerr, Professor of Law Emeritus. A.B., West University; B.S., Duke University; J.D., LL.M., Harvard Law School. WILLIAM E. Marsh, Professor ofLaw Emeritus. B.S., J.D., University of Nebraska. Ronald W. Polston, Professor of Law Emeritus. B.S., Eastern Illinois University; LL.B., University of Illinois College of Law. Kenneth M. Stroud, Professor of Law Emeritus. A.B., J.D., Indiana University — Bloomington. JAMES W. TORKE, Carl M. Gray Professor of Law Emeritus. B.S., J.D., University of Wisconsin. JAMES PATRICK White, Professor of Law Emeritus. A.B., University of Iowa; J.D., LL.M., George Washington University Law School. Law Library Faculty JudithFord ANSPACH, Professor ofLaw and Director, Ruth Lilly Law Library. B.S., M.L.S., Kent State University; J.D., Mississippi College School of Law. DRAGOMIRCOSANICI, HeadofReference. B.A., Michigan State University; M.I.L.S., University of Michigan; J.D., University of Kansas. Debra Denslaw, Reference Librarian. B.A., Franklin College; M.S., University of Illinois, Urbana-Champaign; J.D., Valparaiso School of Law. 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. CHRIS E. LONG, Catalog Librarian. B.A., Indiana University; M.A., Indiana University; M.L.S., Indiana University. MAHNAZK. MOSHFEGH,Acquisition/Serials Librarian. B.A., National University ofIran; M.S., Tehran University; M.A., Ball State University; M.L.S., Ph.D., Indiana University. MIRIAMA. 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 40 2007 Number 2 Copyright © 2007 by the Trustees of Indiana University TABLE OF CONTENTS ARTICLES Blaming the Mirror: The Restatements and the Common Law Kristen David Adams 205 Flipping a Coin: A Solution for the Inherent Unreliability of Eyewitness Identification Testimony Noah Clements 27 1 Implementing Rapanos—Will Justice Kennedy's Significant Nexus Test Provide a Workable Standard for Lower Courts, Regulators, and Developers? Bradford C. Mank 291 Standard Setting, Patents, and Access Lock-In: RAND Licensing and the Theory of the Firm Joseph Scott Miller 35 1 NOTES The Learned Intermediary Doctrine: An Efficient Protection for Patients, Past and Present Jennifer Girod 397 University Liability When Students Commit Suicide: Expanding the Scope of the Special Relationship Heather E. Moore 423 You Can't Win 'Em All: How the NCAA's Dominance of the College Basketball Postseason Reveals There Will Never Be an NCAA Football Playoff Eric Thieme 453 Volume 40 Number 2