Indiana Law Review Indiana Law Review TRIBUTES Biographical Tribute for Professor and Associate Dean Thomas B. Allington Gerald L. Bepko A Colleague's Tribute to Thomas B. Allington Professor of Law and Associate Dean for Technology Lawrence A, Jegen, III Thomas B. Allington Norman Lefstein ARTICLES Recent Defenses of Consideration: Commodification and Collaboration MarkB, Wessman Shielding Children from Violent Video Games Through Ratings Offender Lists Kevin W. Saunders Tinker and Student Free Speech Rights: A Functionalist Alternative R. George Wright "Old Stinking, Old Nasty, Old Itchy Old Toad": Defamation Law, Warts and All (A Call for Reform) Julie C. Sipe NOTES Should You Leave Your Laptop at Home When Traveling Abroad?: The Fourth Amendment and Border Searches of Laptop Computers Rasha Alzahabi Garcetti v. Ceballos: Public Employees Left to Decide "Your Conscience or Your Job" Elizabeth M. Ellis Indiana's Brownfields Initiatives: A Vehicle for Pursuing Environmental Justice or Just Blowing Smoke? Oni N, Harton Indiana Proposed Defense of Marriage Amendment: What Will It Do and Why Is It Needed Melissa B. Neely * INDIANA UNIVERSITYSCHOOL OF LAW-INDIANAPOLIS IUPUI Volume 41 No. 1 2008 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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The Review publishes articles by prominent legal scholars, practitioners, and policy makers from around the world, as well as student-written notes and comments. The Review is published twice annually, with a periodic third issue devoted to a specific topic in international or comparative law. In 1994, in conjunction with the Italian Academy for Advanced Studies in America at Columbia University, the Review published a special issue on the political and social aspects of Italian law. In 1996, the Review published an issue addressing various aspects of Chinese law. Name School/Firm/Business Address City, State, Zip Code Subscriptions within the U.S. are $18.00 per year and outside the U.S. are $21.00 per year. I enclose $ for subscription(s) to the Indiana International & Comparative Law Review. Please make your check payable to Indiana International & Comparative Law Review. Mail to: Executive Production Editor Indiana International & Comparative Law Review Lawrence W. Inlow Hall 530 West New York Street Indianapolis, Indiana 46202 In 2003, Indiana University School of Law - Indianapolis established a specialty law review focused specifically on health care law and policy: The scope of the Indiana Health Law Review includes bioethics, malpractice liability, managed care, anti-trust, health care organizations, medical-legal research, legal medicine, food and drug, and other current health-related topics. Detach and mail this subscription form today to receive future issues Subscription Price: $20.00 Two (2) Issues Automatic Renewal Foreign Mailing Is Extra Mail form to: Indiana Health Law Review Indiana University School of Law - Indianapolis Attn: Executive Business Editor Lawrence W. Inlow Hall, Room 136C 530 W. New York Street Indianapolis, IN 46202-3225 Questions? 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The Indiana Law Review anticipates that free tickets will be required to attend the keynote address. The Symposium will be held on April 4, 2008, at the Indiana University School of Law - Indianapolis in the John and Barbara Wynne Courtroom. This date marks the passage of four decades since the tragic assassination of Dr. Martin Luther King, Jr. Dr. King's inspiring message of equal opportunity for every person and his commitment to changing views and attitudes are embodied in the Fair Housing Act. The Symposium will pay a special tribute to Dr. King and will honor his legacy through collaborative efforts to continue the eradication of housing discrimination and segregation. CLE Certification (Pending Approval) The Indiana Law Review is currently seeking CLE certification for this event and will post registration information for the Symposium as soon as it is available at http://www.indylaw.indiana.edu/ilr/symposium.htm. The Indiana Law Review is honored to host this Symposium event and to publish a Symposium issue dedicated to a topic of such vital importance. For additional information regarding this event, including a list of guest speakers, please visit the Symposium website at http://www.indylaw.indiana.edu/ilr/symposium.htm or contact Elizabeth Ellis, Symposium Editor, at ilrevent@iupui.edu. N \ Indiana University School of Law—Indianapolis 2007-2008 ADMINISTRATIVE OFFICERS AND FACULTY Administrative Officers MICHAEL A. McRobbie, President of the University. Ph.D., Australian National University. CHARLES R. BANTZ, Chancellor, Indiana University-Purdue University—Indianapolis. B.A., M.A., University of Minnesota; Ph.D., The Ohio State University. GARY R. ROBERTS, Dean and Gerald L. Bepko Professor of Law. B.A., Bradley University; J.D., Stanford University. PaulN. Cox, Vice Dean and Centennial Professor ofLaw. B.S., Utah State University; J.D., University of Utah; LL.M., University of Virginia. ANGELA M. ESPADA, Associate Dean for Student Services. B.A., Indiana Central University; M.A., Indiana University; J.D., Indiana University School of Law—Bloomington. JonnaKaneMacDougall,Assistant Deanfor InstitutionalAdvancement. B.S., M.A., Indiana University; J.D., Indiana University School of Law—Indianapolis. CLAIRE GROVE, Assistant Dean for Graduate Studies. B.A., Indiana University; J.D., Indiana University School of Law—Indianapolis. TERESA (Terri) J. Cuellar, Director of Technology Services. B.S., St. Bonaventure University, New York. ELIZABETH ALLINGTON, Director ofExternal Affairs. B.A., Indiana University; M.A., M. Phil., New York University. JOYCE M. HERTKO, Director of Major Gifts. B.A., Knox College; M.S., Western Illinois University; Ph.D., Indiana University. PATRICIA KlMBERLY KINNEY, Director ofAdmissions. B.S., Purdue University; J.D., Indiana University School of Law—Indianapolis. AMANDA KAMMAN, Director ofDevelopment. B.A., Indiana University. VIRGINIA MARSCHAND, Director ofAdministrative and Fiscal Affairs. B.A., M.P.A., Indiana University; J.D., Indiana University School of Law—Indianapolis. HEATHER McCABE, Director, Public Health Law Program, William S. and Christine S. Hall Center for Law and Health. B.A., M.S.W., Indiana University; J.D., Indiana University School of Law—Indianapolis. CHASTITY THOMPSON, Director of Professional Development. A.S., B.A., Alabama State University; M.B.A., Auburn University; J.D., Indiana University School of Law — Indianapolis. LaWandaW. WARD, Director ofPro Bono Program and Public Interest. B.A., Murray State University; M.A., Illinois State University; M.S., Old Dominion University; J.D., Indiana University School of Law—Indianapolis. Faculty CYNTHIA M. ADAMS, Clinical Associate Professor ofLaw. B.A., Kentucky Wesleyan College; J.D., Indiana University School of Law—Indianapolis. 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. CYNTHIA BAKER, Clinical Associate 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. Chestek, 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, Vice Dean and Centennial Professor ofLaw. B.S., Utah State University; J.D., University of Utah College of Law; LL.M., University of Virginia School of Law. ERicDANNENMAIER, Associate Professor ofLaw. B.A., Drury College; J.D., Boston University; LL.M., Columbia University; M. St., Oxford University (cand.). JAMES D. DMITRI, Clinical Associate Professor of Law. B.S., Indiana University; J.D., Valparaiso University School of Law. Jennifer Ann Drobac, Professor of Law. B.A., M.A., Stanford University; J.D., J.S.D., Stanford Law School. GEORGE E. EDWARDS, Carl M. Gray 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, HaroldR. Woodard Professor ofLaw. Ptyhion Nomikis, Athens University School of Law; LL.M., S.J.D., Harvard Law School. FRANCES WATSON Hardy, Clinical Associate Professor ofLaw. B.S., Ball State University; J.D., Indiana University School of Law—Indianapolis. John Lawrence Hill, Professor of Law. B.A., Northern Illinois University; J.D., Ph.D., Georgetown University. Linda Kelly Hill, M. Dale Palmer Professor ofLaw. B.A., J.D., University of Virginia. 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. ROBERTA. Katz, Professor ofLaw. A.B., Harvard College; J.D., University of Chicago Law School. Eleanor D. KINNEY, Hall Render Professor of Law, Co-Director of the William S. and Christine S. Hall Centerfor Law andHealth 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, Paul E. Beam Professor of Law. B.A., University of Wisconsin; J.D., Emory University School of Law. ROBERT E. LANCASTER, Clinical Professor ofLaw, Director, Chinese Law Summer Program. B.A., Millsaps College; J.D., Tulane Law School. NORMANLEFSTEIN, Professor ofLaw and Dean Emeritus. LL.B., University of Illinois College of Law; LL.M., Georgetown University Law School. MARIAPabonLOPEZ, Associate Professor ofLaw andDirector, Latin American Law Program. B.A., Princeton University; J.D., University of Pennsylvania Law School. Gerard N. Magliocca, 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 of Legal Analysis, Research and Communication. B.A., University of Evansville; J.D., Georgetown University Law School. SUSANAH M. MEAD, Professor ofLaw. B.A., Smith College; J.D., Indiana University School of Law—Indianapolis. 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 of Law. B.A., Knox College; J.D., University of North Carolina Law School. DAVID ORENTLICHER, Samuel R. Rosen Professor ofLaw and Co-Director of the William S. and Christine S. Hall Centerfor Law and Health. A.B., Brandeis University; J.D., M.D., Harvard College. JOANNE ORR, Clinical Professor of Law. B.S., Indiana State University; J.D., California Western School of Law. Antony Page, Associate Professor of Law. B. Comm., McGill University; M.B.A., Simon Fraser University; J.D., Stanford Law School. H. KATHLEEN PATCHEL, Associate Professor of Law. A.B., Huntington College; J.D., University of North Carolina Law School; LL.M., Yale Law School. MICHAEL J. PITTS, Associate Professor of Law. B.S.J., Northwestern University; J.D., Georgetown University Law Center. 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. WlLKlNS, 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 THOMAS B. Allington, Professor ofLaw Emeritus. B.S., J.D., University ofNebraska; LL.M., New York University School of Law. 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. Jeffrey W. Grove, Professor of Law Emeritus. A.B., Juniata College; J.D., George Washington University 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 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. 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. Johntlng, 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. Steven R. Miller, Reference Librarian. B.S., Lebanon Valley College ofPennsylvania; M.A., Dominican University; M.S., Northwestern University; J.D., The John Marshall Law School. 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. MIRIAM A. MURPHY, Associate Director ofLaw Library. B.A., Purdue University; J.D., M.L.S., Indiana University—Bloomington. KjyoshiOtsu, Automated and Media Services Librarian. A.A., Parkland College; A.B., M.S., C.A.S., University of Illinois. Indiana Law Review Volume 41 2008 Number 1 Copyright © 2008 by the Trustees of Indiana University TABLE OF CONTENTS TRIBUTES Biographical Tribute for Professor and Associate Dean Thomas B. Allington Gerald L. Bepko 1 A Colleague's Tribute to Thomas B. Allington Professor of Law and Associate Dean for Technology Lawrence A. Jegen, III 5 Thomas B. Allington Norman Lefstein 1 ARTICLES Recent Defenses of Consideration: Commodification and Collaboration Mark B. Wessman 9 Shielding Children from Violent Video Games Through Ratings Offender Lists Kevin W. Saunders 55 Tinker and Student Free Speech Rights: A Functionalist Alternative R. George Wright 105 "Old Stinking, Old Nasty, Old Itchy Old Toad": Defamation Law, Warts and All (A Call for Reform) Julie C. Sipe 137 NOTES Should You Leave Your Laptop at Home When Traveling Abroad?: The Fourth Amendment and Border Searches of Laptop Computers Rasha Alzahabi 161 Garcetti v. Ceballos: Public Employees Left to Decide "Your Conscience or Your Job" Elizabeth M. Ellis 1 87 Indiana's Brownflelds Initiatives: A Vehicle for Pursuing Environmental Justice or Just Blowing Smoke? Oni N. Harton 215 Indiana Proposed Defense of Marriage Amendment: What Will It Do and Why Is It Needed Melissa B. Neely 245 Volume 41 Number 1