Legal Writing and Academic Support: Timing is Everything

The conventional wisdom is that legal writing and academic support go hand-in-hand. Most law schools assume that struggling students can be reliably identified for academic support through their first-year legal writing course, and that first-year legal writing instructors can fairly easily and effectively provide this support. Indeed, this is the prevailing view in current academic support and legal writing scholarship. Professor Koller\u27s article challenges the conventional wisdom and instead points out several issues that should be considered if a law school relies on the first-year legal writing course as a component of, or in lieu of, an academic support program. First, Professor Koller argues that identifying students who may need academic support through a first-year legal writing course can give many false positives and false negatives due to the unique nature of the course. Second, Professor Koller points out that first-year legal writing courses do not provide built-in academic support, as is frequently assumed. Because the goals and challenges of the first-year course are so significant, there is often little opportunity for a professor to provide meaningful academic support. Finally, Professor Koller argues that the structure of the typical first-year legal writing course can encourage student dependence on faculty support, something that is counter-productive to a law school\u27s academic support efforts. In light of these issues that are presented in the first-year, Professor Koller argues that the best use of a legal writing course in conjunction with academic support is as a vehicle for more advanced academic support in the upper-level curriculum. Professor Koller supports this argument with an illustration of the academic support model in place at the University of Maryland School of Law

The Obese and the Elite: Using Law to Reclaim School Sports

Sports in schools are a uniquely American phenomenon. Athletic programs flourish in high schools, colleges, and universities with traditionally very little interference by legislatures or courts. The most notable, if not limited, exception to this deference is Title IX of the Civil Rights Act of 1964 (Title IX), which prohibits educational institutions receiving federal financial assistance from discriminating on the basis of gender. As applied to athletic programs, Title IX is often cited as a public policy success. The law has led to the creation of meaningful sports participation opportunities for women and girls and shaped new norms for sports in general by sending a message that women and girls are entitled to participate on terms equal to men and boys. Statistics amply demonstrate that women’s and girls’ athletic participation rates since Congress passed the statute have increased dramatically. Despite these gains, however, many women and girls, especially those of color and from disadvantaged backgrounds, still do not participate in sports in numbers comparable to males. More broadly, data show that most children do not get nearly enough daily physical activity, and many consider childhood obesity a national crisis. These statistics occur against the backdrop of media attention and social science research persistently highlighting troubling issues with the elite, “win-at-all-costs” model for athletics that predominates in our schools and its effects on children’s ability and willingness to participate in sports. Nevertheless, policy discourse around education-based sports programs focuses almost exclusively on gender discrimination and lack of robust Title IX enforcement. Using the theory of “problem definition,” this article explains the political focus on gender discrimination and Title IX as the primary point of legal intervention in education-based sports and asserts that such a focus is no longer justified. Instead, this article asserts that the time is ripe for a redefinition of the policy problem with education-based sports programs and suggests a pathway for legal reform in an effort to stimulate policy solutions that ultimately will benefit all students

Does the Constitution Apply to the Actions of the United States Anti-Doping Agency?

Since its formation in 2000, the United States Anti-Doping Agency (USADA) has aggressively pursued athletes who are believed to have used performance-enhancing substances and has aggressively prosecuted those who ultimately test positive. To many, this is a long overdue response to the growing problem of doping in sports. But to others, USADA\u27s actions, and the federal government\u27s support of these efforts, has sparked enormous controversy. This article examines USADA and its relationship to the federal government to determine whether USADA\u27s actions could be constrained by the Constitution. While it is clear that USADA has very close ties to the federal government, this article asserts that USADA is not a government entity, and in most cases is not engaged in state action. Accordingly, in the typical doping case, constitutional restrictions would not apply to USADA\u27s conduct. In unique circumstances when the federal government does intervene, however, as it did in the months leading up to the 2004 Athens Olympic Games, this article makes the claim that there is a strong argument that USADA\u27s conduct amounts to state action

How the Expressive Power of Title IX Dilutes Its Promise

Title IX is widely credited with shaping new norms for the world of sports by requiring educational institutions to provide equal athletic opportunities to women. The statute and regulations send a message that women are entitled to participate in sports on terms equal to men. For several decades, this message of equality produced dramatic results in participation rates, as the number of women interested in athletics grew substantially. Despite these gains, however, many women and girls, especially those of color and lower socio-economic status, still do not participate in sports, or remain interested in participating, in numbers comparable to their male counterparts. Indeed, in recent years the gains in participation rates brought about by Title IX seemingly have leveled off while the childhood obesity crisis, especially among girls, has grown. Title IX scholarship and popular advocacy efforts often focus on greater Title IX enforcement as the way to continue attracting women and girls to participate in competitive sports. This Article examines whether greater enforcement of Title IX’s equality mandate is the answer, by looking at the signals the statute and regulations send to prospective female athletes. In doing so, this Article explains that a key feature of Title IX theory is that discrimination in the form of fewer opportunities for women as compared to men, as well as sub-par conditions for participation, “sends a message” to girls that discourages them from participating. This negative message is the prevailing explanation for why women still do not participate in sports at rates comparable to men. Implicit in this argument is that strong Title IX enforcement can produce the opposite result, continuing to signal that women are entitled to participate in sports on terms equal to men, and that such a positive message will stimulate interest in participation. This Article seeks to push beyond such assumptions to examine with more nuance how Title IX speaks to women about sports and how the law’s expressive content affects women’s interest in participating. Using the expressive theory of the law, this Article takes the position that Title IX powerfully “speaks” beyond its remedies, and the message today is much more complex than that of simply empowering women through a message of equality. Instead, this article asserts that Title IX in fact sends a mixed message, communicating both that women and girls are entitled to participate in athletics under the same conditions as their male counterparts, but also that such participation opportunities are within a model for athletics that serves to exclude those who lack the interest, ability and/or resources to meet its demands. As a result, while Title IX communicates an empowering message that can in many cases stimulate women’s interest in sports, it also sends a message that drives many more women, especially those of color and lower socio-economic status, away

Not Just One of the Boys: A Post-Feminist Critique of Title IX\u27s Vision for Gender Equity in Sports

Title IX as applied to athletics is a high-profile, controversial public policy effort that has opened up the world of athletics to millions of girls and women. Yet as it is both celebrated for the opportunities it has created for women, and decried as going too far at the expense of men, a reality persists that women do not pursue or remain committed to sport in numbers comparable to men. This Article seeks to explore this phenomenon by moving the discourse beyond the debate over whether women are inherently as interested in sport as men to examine the conception of equality incorporated into Title IX and how this might affect women\u27s interest in participating in sport. In doing so, this Article asserts that it is not at all clear that greater Title IX enforcement alone can serve to stimulate interest in the population of girls and women who do not currently participate in sport. This is because Title IX\u27s anti-discrimination mandate only serves to secure opportunities for females to assimilate into a model for sport—emphasizing elite ability and commercial appeal—which was constructed by and for males. This model, incorporated into Title IX through the requirement that schools must only provide opportunities to female athletes who are interested and have the ability to play varsity-level sport, can in many cases create what this Article describes as an interest paradox, extinguishing the interest of those girls and women who would engage in sport, but are not Willing to assimilate into the current model. While this Article supports the position that greater Title IX enforcement is a worthy goal, it argues that the time has come for a new sport policy that can incorporate fully women\u27s voices in education-based athletics and redefine norms for sport participation so that the benefits of such participation may be enjoyed by a greater population of females

The Obese and the Elite: Using Law to Reclaim School Sports

Sports in schools are a uniquely American phenomenon. Athletic programs flourish in high schools, colleges, and universities with traditionally very little interference by legislatures or courts. The most notable, if not limited, exception to this deference is Title IX of the Civil Rights Act of 1964 (Title IX), which prohibits educational institutions receiving federal financial assistance from discriminating on the basis of gender. As applied to athletic programs, Title IX is often cited as a public policy success. The law has led to the creation of meaningful sports participation opportunities for women and girls and shaped new norms for sports in general by sending a message that women and girls are entitled to participate on terms equal to men and boys. Statistics amply demonstrate that women’s and girls’ athletic participation rates since Congress passed the statute have increased dramatically. Despite these gains, however, many women and girls, especially those of color and from disadvantaged backgrounds, still do not participate in sports in numbers comparable to males. More broadly, data show that most children do not get nearly enough daily physical activity, and many consider childhood obesity a national crisis. These statistics occur against the backdrop of media attention and social science research persistently highlighting troubling issues with the elite, “win-at-all-costs” model for athletics that predominates in our schools and its effects on children’s ability and willingness to participate in sports.Nevertheless, policy discourse around education-based sports programs focuses almost exclusively on gender discrimination and lack of robust Title IX enforcement. Using the theory of “problem definition,” this article explains the political focus on gender discrimination and Title IX as the primary point of legal intervention in education-based sports and asserts that such a focus is no longer justified. Instead, this article asserts that the time is ripe for a redefinition of the policy problem with education-based sports programs and suggests a pathway for legal reform in an effort to stimulate policy solutions that ultimately will benefit all students

Physician Liability and Managed Care: A Philosophical Perspective

Despite the emergence of managed health care and the resulting dramatic change in the role of the third-party payer in the physician-patient relationship, the liability standards applied to physicians largely have remained unchanged. This has created a tension between physicians\u27 legal and ethical obligations, and the requirements imposed on the physician by managed health care. Specifically, the issue confronts the physician in the context of malpractice liability. Managed Care Organizations impose a significant amount of control over the way physicians practice medicine, often forcing physicians to ration care. Notwithstanding any beneficial cost savings that might result, this approach subjects the physician to the risk of malpractice liability. Current malpractice law enhances this risk, because courts frequently speak of physicians having a duty to resist the pressures of managed care. This presents a significant policy problem, not just for physicians and their patients, but for society at large, as the current legal framework does not further, but in fact undermines, society\u27s overall goal of containing health care costs. Professor Fine examines the policy problem through a philosophical lens, and maintains that the law\u27s failure to account for the change to a managed care model and the resulting change in the way the physician practices medicine has created a situation that is fundamentally unfair to physicians. More importantly, it is argued that the continued adherence to outdated principles of liability is deficient from a utilitarian perspective, as the current framework hinders society\u27s overall goal of lowering health care costs. Finally, Professor Fine evaluates proposed solutions to this problem, and concludes that the best approach is one that relies on the medical profession to take the initiative and institute reforms in the way medicine is practiced so that considerations of cost can be responsibly and effectively incorporated into treatment decisions. This would make the standard of care more reflective of the current state of health care, and better promote the goal of cost containment

Government as God: An Update on Federal Intervention in the Treatment of Critically Ill Newborns

Whether a severely impaired or critically ill infant should receive lifesaving, and sometimes extraordinary, medical treatment, or be allowed to die, is hotly debated. The issue initially garnered public attention in 1982, when an infant who was born with Down\u27s Syndrome, “Baby Doe,” was allowed to die from a correctable birth defect. Following this, the federal government took a lead role in determining the fate of critically ill newborns. In the meantime, doctors, philosophers, and others have debated whether federal interference in this area is appropriate. This essay will bring the reader up to date on the “Baby Doe” issue by summarizing the contours of the debate and explaining the legislation, in the form of amendments to the Child Abuse Prevention and Treatment and Adoption Reform Act of 1978 (CAPTA), that ultimately resulted from the initial “Baby Doe” controversy. This essay also will add an additional voice to the discussion by criticizing federal intervention in this area on three main grounds. The first ground is that the federal government purports to solve a problem that largely does not exist, and in so doing, it oversimplifies the profound moral questions that surround the issue of whether to aggressively treat a severely impaired newborn. Secondly, federal intervention in this area through the CAPTA Amendments is bad policy because it eliminates parents from the treatment decision. Thirdly, the policy fails on a philosophical level because it does not square with our intuitions. Finally, this essay will highlight a view that is largely missing from the debate on this issue - that of the practicing physicians who work with critically ill, severely impaired newborns and their parents every day. The essay will conclude by briefly suggesting an alternative policy approach, which would presume that parents, in consultation with their doctors, are the appropriate decision-makers in these cases unless circumstances warrant otherwise

The Obese and the Elite: Using Law to Reclaim School Sports

Sports in schools are a uniquely American phenomenon. Athletic programs flourish in high schools, colleges, and universities with traditionally very little interference by legislatures or courts. The most notable, if not limited, exception to this deference is Title IX of the Civil Rights Act of 1964 (Title IX), which prohibits educational institutions receiving federal financial assistance from discriminating on the basis of gender. As applied to athletic programs, Title IX is often cited as a public policy success. The law has led to the creation of meaningful sports participation opportunities for women and girls and shaped new norms for sports in general by sending a message that women and girls are entitled to participate on terms equal to men and boys. Statistics amply demonstrate that women’s and girls’ athletic participation rates since Congress passed the statute have increased dramatically. Despite these gains, however, many women and girls, especially those of color and from disadvantaged backgrounds, still do not participate in sports in numbers comparable to males. More broadly, data show that most children do not get nearly enough daily physical activity, and many consider childhood obesity a national crisis. These statistics occur against the backdrop of media attention and social science research persistently highlighting troubling issues with the elite, “win-at-all-costs” model for athletics that predominates in our schools and its effects on children’s ability and willingness to participate in sports.Nevertheless, policy discourse around education-based sports programs focuses almost exclusively on gender discrimination and lack of robust Title IX enforcement. Using the theory of “problem definition,” this article explains the political focus on gender discrimination and Title IX as the primary point of legal intervention in education-based sports and asserts that such a focus is no longer justified. Instead, this article asserts that the time is ripe for a redefinition of the policy problem with education-based sports programs and suggests a pathway for legal reform in an effort to stimulate policy solutions that ultimately will benefit all students

Amateur Regulation and the Unmoored United States Olympic and Paralympic Committee

n the wake of the USA Gymnastics sexual abuse scandal and Women’s National Soccer Team’s claim for pay equity, members of Congress have proposed legislation that would reform the United States Olympic and Paralympic Committee (USOPC) through amendments to its governing statute, the Ted Stevens Olympic and Amateur Sports Act. While an important step in the right direction, the proposed reforms fail to address deeper, more urgent questions about the USOPC, the sport National Governing Bodies (NGBs) it recognizes, and the meaning of the Olympic and Amateur Sports Act. This Article explores those issues by explaining that the USOPC’s quasi-governmental nature means it is an amateur regulator—trusted to act in the public interest, consistent with its statutory purpose, but without the structure, funding, and institutional expertise of a federal agency. Drawing from existing scholarly literature on quasi-governmental entities, this Article explains that the USOPC’s status allows it to easily become unmoored from its governing statute’s original purposes and intent. This Article asserts that proposed reforms to the Olympic and Amateur Sports Act must take account of this structure and suggests reforms that will create greater accountability to ensure that the USOPC better meets its statutory purposes and serves the national interest