Vol. 67, No. 2


Stare Decisis in Iowa
Tyler J. Buller & Kelli A. Huser

The rate at which a court overrules its own precedent reflects its relationship with the concept of stare decisis. Existing research provides some insight into how the United States Supreme Court and some state courts of last resort overrule cases. This Article, however, provides the first empirical study focused on the Iowa Supreme Court’s overruling decisions, providing quantitative information and descriptive statistics regarding the Iowa Supreme Court’s relationship with precedent. The study finds, over the Iowa Supreme Court’s lifespan, the court’s precedent has been fairly stable, though the rate of overrulings in the late twentieth and early twenty-first centuries has exceeded most other courts of last resort. Additionally, the court has issued a disproportionately high number of statutory overrulings throughout its history. The study also finds the most recent incarnation of the Iowa Supreme Courtthe “Cady Court”overrules cases at a similar rate to its predecessors, but it overrules proportionally more criminal, constitutional, and statutory cases. The Article concludes with an analysis of the statistical data in light of the Authors’ experience as litigators before the Iowa Supreme Court.

Murphy v. NCAA & South Dakota v. Wayfair, Inc.: The Court’s Anticommandeering Jurisprudence May Preclude Congressional Action with Respect to Sales Taxes on Internet Sales
Matthew A. Melone

The Professional and Amateur Sports Protection Act (PASPA), a federal law that prohibited states from sanctioning sports betting, was enacted in 1992 at the instigation of professional sports leagues and the National Collegiate Athletic Association in order to safeguard the integrity of their products. PASPA had been the subject of little litigation and attention until New Jersey recently challenged the constitutionality of PASPA. New Jersey’s challenge culminated with the Supreme Court’s May 2018 decision in Murphy v. NCAA, which held PASPA unconstitutional. According to the Court, PASPA impermissibly commandeered the states. The Court held that federal requirements that restrain state action are to be examined similarly to federal limitations on state action. The Court’s reasoning in this case calls into question the extent to which, and the circumstances under which, the federal government can order states to refrain from action.

On June 21, 2018, the Supreme Court overturned long-standing precedent and held, in South Dakota v. Wayfair, Inc., that a state may impose sales-tax and use-tax obligations on a seller of goods and services despite the seller’s lack of any physical presence in the state. The Court took note of the rapid growth of electronic commerce in recent decades. It found market changes wrought by such growth rendered the physical presence test a relic of a bygone commercial world that caused distortion in retail markets and significant revenue losses for states. Prior to Wayfair, Inc., Congress, pursuant to its power to regulate interstate commerce, could dictate the terms under which states could impose tax obligations on remote sellers. Wayfair, Inc. now allows states to impose such taxes without a congressional imprimatur.

Decisions regarding sports gambling and sales taxes would appear to have no relation to each other. However, a significant objection to state imposition of sales-tax obligations on remote sellers stems from the administrative burden caused by sellers’ compliance with the laws of multiple taxing jurisdictions and the concomitant variations in tax bases and tax rates among those jurisdictions. The Court itself discussed this issue in Wayfair, Inc. and noted that Congress can provide solutions if the need arises. However, the Court’s decisions in both cases leave in doubt whether Congress, in fact, has the power to streamline state sales-tax and use-tax regimes. Wayfair, Inc. eliminates the need for states to obtain congressional permission to impose tax obligations on remote sellers. Murphy may prohibit Congress from conditioning the exercise of state taxing powers upon the satisfaction of federal standards.

What Lies Beneath: A Jurisprudential Review of Recent Cemetery and Human-Remains Cases
Mary Catherine Joiner & Ryan M. Seidemann

Although most practitioners will never specialize in anything that could be considered “the law of the dead,” it is not unusual, especially for solo practitioners, to encounter an occasional tort, contract, or property dispute that contains an issue related to a cemetery or a funeral matter. Because these types of cases are seldom the specialty of any one attorney, but also because these cases contain unique themes that pervade aspects of numerous practice areas, periodic reviews of the trends of such cases are warranted. In this review, recent jurisprudence from around the United States is considered in a nationwide context of a “law of the dead” in order to both introduce readers to this often unique and bizarre area of legal practice as well as to serve as a guide to practitioners if and when a client raises such issues.

Vindication: Varnum v. Brien at Ten Years
Allan W. Vestal

It has been 10 years since the Iowa Supreme Court decided Varnum v. Brien, the equal protection challenge to Iowa’s statutory exclusion of same-sex civil marriage. With the unanimous decision, Iowa joined two other states in having marriage equality. Varnum was controversial at the time because of its result, if not its constitutional reasoning. The following year, three members of the court failed on a retention vote which was widely thought to be linked to the decision.

This Article revisits the Varnum decision and the electoral aftermath. It then considers how Varnum has fared over the last decade in terms of the court’s legal reasoning, the acceptance of marriage equality, and the effect of the decision on the Iowa judiciary. On all three dimensions, the Article finds richly deserved vindication of the Varnum court and its marriage-equality decision.


A Comparative Examination of the Doctor-Patient Privilege in State and Federal Courts in Iowa
Abdullah M. Azkalany

Every day, Americans enter their doctors’ offices and shut the doors behind them under the assumption that the things they discuss with their physician will not be divulged to the outside world. While this is generally true, there are multiple avenues by which this information can be disclosed. Oftentimes, it is through the express will of the patients, such as when they agree to allow an insurance provider or another healthcare provider access to records for purposes of furthering treatment. Another instance is when equity calls for waiver of privilege because a patient seeks to bring a lawsuitthe success of which depends entirely on the patient’s medical condition. Justice and fairness counsel against recognition of a privilege in these contexts.

What may not be so commonly known, however, is that the recognition of this expectation of privacy largely depends upon the jurisdiction. State and federal courts differ widely in their approaches, such that the same information exchanged between a patient and his or her healthcare provider could be subject to privilege in one court and not in the other.

This Note calls for uniformity in the treatment of privileged communications across jurisdictions, as this ultimately facilitates communication between a patient and a healthcare provider, simplifies matters for the bar and the bench alike, and stays true to the principle of privacy so deeply rooted in our country’s laws.

The Right Recovery for Wrongful Birth
Haley Hermanson

Wrongful birth claims are negligence actions brought by the parents of a child born with genetic defects or disabilities, alleging they would have avoided conception or terminated an existing pregnancy but for the negligence of the medical professionals charged with prenatal care. The growing prevalence of this cause of action, along with the other closely related prenatal torts, reflects the rapid progress of modern medicine. In recent years, most courts faced with a wrongful birth claim have recognized it as a valid cause of action and have permitted some measure of damages.

A shocking lack of consensus exists in virtually every aspect of this area of law. Courts are divided as to why these actions should be permitted, the nature of the tort, and the proper elements involved. Perhaps the most controversial area is damages, with recoverable elements of damages varying from jurisdiction to jurisdiction and considerable disagreement over what restrictions should be placed on recovery.

The Iowa Supreme Court recently recognized wrongful birth as a cause of action. However, the court declined to address the measure of damages, leaving Iowa district courts without guidance in determining the right recovery for these novel claims.

This Note examines the increasing recognition of the prenatal torts, specifically focusing on the wrongful birth cause of action; the specific elements of wrongful birth within the informed consent framework utilized by most states; and the wide divergence in recoverable damages and their underlying rationales across jurisdictions. Finally, this Note makes a recommendation to Iowa courts on the proper recoverable damages in the state.

Back to Articles