Warriors, Machismo, and Jockstraps: Sexually Exploitative Athletic Hazing and Title IX in the Public School Locker Room

Sexually exploitative athletic hazing on boys’ athletic teams is an increasingly frequent feature in the news. The physical and psychological abuse of younger team members by those who are more senior is not just humiliating but dangerous. Indeed, some athletes are charged with crimes that are committed during hazing activities. More to the point, the features of sexually exploitative hazing have all the earmarks of sexual harassment when team leaders use sexual assaults to keep younger members in their place by feminizing them or otherwise challenging their ability to conform to a hegemonic masculine sports stereotype. Athletic hazing’s part in maintaining that hegemonic masculinity is often an outgrowth of a “tradition” and is therefore “rationally” perceived as a rite of passage to this admired masculinity. However, athletic hazing is not rational. It is not an initiation rite because junior members are already members of the team. Instead, athletic hazing is explicitly about team self-governance, and sexually exploitative hazing is a potent tool to create a team hierarchy through fear and intimidation. Given the indicia of sexual harassment in such hazing, Title IX litigation has proved an important remedy for individual boys who are brave enough to challenge the sports culture when they can no longer endure the physical and emotional abuse. But litigation is reactive, not pro-active, and Title IX’s better use may be in shaping systemic remedies in the locker room through either injunctive relief or investigation by the Office of Civil Rights. Schools have to take institutional responsibility for creating the culture that allows hazing to thrive in an inherently educational function. Thus, the cure for hazing is to make the adults in the building accountable for their devotion to an unattainable hegemonic sports masculinity and for their abdication of team governance to teenagers

Challenging Gender in Single-Sex Spaces: Lessons from a Feminist Softball League

This Article explores transgender inclusion within adult recreational women’s leagues by using the example of the Mary Vazquez Women’s Softball League (MVWSL), in Northampton, Massachusetts. A MVWSL policy addressing transgender inclusion became necessary due to a noticeable increase in gender-identity diversity. The resultant policy respects the league’s core lesbian constituency by providing individuals with the freedom to acknowledge openly a gender identity that has or is evolving from lesbian to something else, and reflects the league’s founding feminist principles by refusing to define for others the suitability of a women’s community. The Author demonstrates the successful creation of a policy based on internal principles and values rather than external ones, and defines inclusion and prohibits discrimination based on gender identity. This application can be applied in other sporting contexts that separate players by sex to determine the values-driven process of defining who is eligible in each category or, when separation is necessary, to promote the objectives of the leagues, particularly when such a policy is absent from public law

Deconstructing Corporate Governance: Director Primacy Without Principle?

For almost eighty years now, corporate law scholarship has centered around two elementary analytical findings made in what has once been described as the “last major work of original scholarship”within the field

The Useless Arctic: Exploiting Nature in the Arctic in the 1870s

What is the discursive genealogy of an ecological approach to the Arctic? Building on distinctions suggested by Francis Spufford and Gísli Pálsson, this article examines a specific juncture in the history of European–Arctic interaction – the reception of the Austro-Hungarian Arctic Expedition in 1874 – and traces the potential for ecological and relational understandings in what seems to be an orientalist and exploitative material. Examining the medial reception in Austria and in Norway, along with certain key texts in which Arctic wildlife is described, we find that the Norwegian reception of the expedition emphasizes practical issues connected with resource exploitation in the Arctic, while the Austrian reception mostly sees the Arctic as a symbolic resource with which to negotiate issues of identity and modernity. The Austrian discourse revolves around a set of paradoxical contradictions, the most central being those between materialism and idealism and emptiness and fullness; we argue it is the instability of such ambiguities which produces the possibility of a future ecological discourse

A Bare Desire to Harm: Transgender People and the Equal Protection Clause

The U.S. Supreme Court’s decision in Obergefell v. Hodges establishing marriage equality for same-sex couples marks a major shift in recognizing gay, lesbian, and bisexual people as a central part of the fabric of American society. Obergefell also marks the passing of the torch from “LGB” to “T”; the next civil rights frontier belongs to transgender people, for whom key barriers still remain. In January 2015, a transgender woman filed an equal protection challenge to a provision of the Americans with Disabilities Act (“ADA”), which explicitly excludes several medical conditions closely associated with transgender people. In support of this challenge, lawyers for the plaintiff (and co-authors of this Article) advance a novel argument: transgender people are a “suspect” or “quasi-suspect” class entitled to heightened scrutiny. The authors further argue that the ADA’s transgender exclusions are unconstitutional no matter what level of scrutiny applies because moral animus against transgender people is not a legitimate basis for lawmaking. This equal protection challenge paves the way for the extension of disability rights protection to transgender people under the Rehabilitation Act, Fair Housing Act, and state anti-disability discrimination laws that mirror the ADA. It also marks a new break for equality law—reaching far beyond disability rights to all laws that single out transgender people for disparate treatment. This challenge also informs the broader theoretical debate over the relationship between identity and impairment, and diagnosis and discrimination

Bioethical Malpractice: Risk and Responsibility in Human Research

This Article provides an overview of Institutional Review Board (IRB) operations, reviews the sources of regulatory guidance, and examines the weaknesses of the existing system for the protection of human research subjects. It then discusses the scant case law relating to IRB negligence in the protection of human research subjects and explores some hypothetical circumstances under which it may be appropriate to hold a board accountable for injuries to clinical trial participants. Finally, this Article considers the potential consequences of expanded IRB liability, concluding that tort lawsometimes may serve an important function as a catalyst to regulatory reform when professional self-regulation and governmental supervision fail

Avoiding Overtreatment at the End of Life: Physician-Patient Communication and Truly Informed Consent

This paper’s primary focus will be on considering how best to ensure that patients have the tools to make both informed and authentic choices about their care at the end of life. We will argue that truly informed decision making can help to reduce excessive end-of-life care by any measure. Most importantly for dying patients, better informed decisions can help reduce unnecessary suffering and result in care that aligns with their well-considered values and preferences. In the first part of this paper, we will explain that, by any of these measures, many dying patients are receiving too much therapy and life-prolonging care. We will also briefly discuss the many factors that contribute to this state of affairs: the culture of denial of death, physicians’ professional culture and attitudes toward treatment, physicians’ fear of liability, physician avoidance of discussions about prognosis, and the impact of payment incentives that encourage overutilization of medical technologies. In the second part of this paper, we will explain that, under the doctrine of informed consent, physicians have an ethical and legal obligation to provide patients with timely and accurate information that will enable patients to make informed decisions about end-of-life care. Yet compliance with informed consent law does not ensure that patients’ decisions are truly informed and, in practice, the norm is still to provide too much care. In the third part of the paper, we discuss several tools and techniques that are available to help physicians and patients achieve the goal of truly informed decision making, including training to promote the practice of shared decision making and the use of decision aids

The Role of Race in End-of-Life Care

This essay focuses on one important aspect of racial disparities that has received comparatively little attention in the legal literature--the existence and causes of racial differences in end-of-life decision making and in the utilization of palliative and hospice care. African Americans and other racial minorities in the United States utilize palliative care and hospice less frequently than white Americans. These minority populations also tend to resist advance care planning and instead opt to receive more life-prolonging care at the end of life, even when quality of life and prognosis are poor. After a lifetime of limited access to health care compared with whites and, in some cases limited treatment options (because of lack of insurance coverage or biased clinical judgment by physicians), African Americans and other racial and ethnic minorities utilize strikingly higher levels of aggressive, life-prolonging care at the end of life. Much of the explanation for these disparities in end-of-life care appears to lie in problems with communication and trust between physician and patient, although broader influences of culture and religious belief also play a role. The complexities of communication between minority patients and their physicians run in two directions, creating a destructive synergy that can dampen empathy in the relationship and negatively impact care at the end of life. Although many cultural factors play a role in the decision making of African American patients regarding end-of-life care, this essay focuses primarily on issues of trust and communication because these impact African Americans most directly

Paving the Road: A Charles Hamilton Houston Approach to Securing Trans Rights

This Article argues that securing the rights of transgender people requires a comprehensive and long-term litigation strategy and suggests Charles Hamilton Houston as the architect of the modern Civil Rights movement and the inspiration for a trans rights litigation strategy. Section II briefly details the life of Charles Hamilton Houston and focuses on the legal strategy he designed and carried out to overturn Plessy. It continues by drawing some conclusions about what Houston\u27s plan teaches about the struggle for trans rights and a trans litigation strategy. Section III examines the reasons certain cases challenge assumptions about sex and gender, such as those brought in the employment context. The Author argues that avoiding such cases early on in the struggle for trans rights in favor of other, less emotionally charged ones, would be most effective in creating trans-positive law. This incremental approach, while far from ideal, would allow time to do the important work of educating society about the incorrect assumptions upon which sex stereotypes are based and the harm that results therefrom. Section IV details some of the construction materials already in place upon which to build a strategy based on Houston\u27s model. Section V describes a recent case brought on behalf of a transgender person that fits into the strategy described here and explores how that case may provide the next step in this Charles Hamilton Houston model of pursuing trans rights through impact litigation

The Illegality of Contingency-Fee Arrangements When Prosecuting Public Natural Resource Damage Claims and the Need for Legislative Reform

Private attorneys are entering into contingency-fee based special counsel agreements with states, territories and tribes, to bring public natural resource damage (NRD) claims. Under this agreement, special counsel brings a NRD action on behalf of the public and fronts the litigation costs, but deducts a percentage of the public\u27s damage recovery to pay the attorney\u27s contingency fee; the remainder goes into a fund to be allocated by the government\u27s NRD trustee. Because NRD claims implicate gargantuan damage awards, the legality of depleting such a damage award by a substantial percentage to pay an attorney\u27s fee is a significant issue that compels public discourse and judicial review. This article concludes that such contingency-fee arrangements violate the express language of, and legislative intent underlying, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Congress included fee shifting provisions permitting recovery for litigation-related attorney\u27s fees in other parts of CERCLA; however, Congress did not similarly provide a fee shift for litigation-related attorney\u27s fees when bringing a NRD claim. Such fees are simply not part of CERCLA\u27s natural resource damage measurement. Moreover, Section 107(f)(1) of CERCLA mandates that [s]ums recovered by the ... trustee ... shall be retained by the trustee, without further appropriation, for use only to restore, replace, or acquire the equivalent of such natural resources. Because contingency-fee agreements divert a significant percentage of the NRD recovery away from its intended purpose - natural resource restoration - to instead pay an attorney\u27s fee, such arrangements violate CERCLA\u27s use restriction. Additionally, the legislative history of CERCLA reflects that CERCLA\u27s NRD provisions are part of tightly-woven congressional design that contemplates a damage award sufficient to accomplish actual restoration of the injured natural resource. However, because litigation-related attorney\u27s fees are not part of the damage measurement, when governments bring NRD claims and improperly deplete the recovery to pay such attorney\u27s fees, the remainder is likely insufficient to accomplish natural resource restoration. For these same reasons, any attempt by special counsel to avoid CERCLA by bringing NRD claims under, and drawing the attorney\u27s fee from, state, territorial and/or common NRD laws, undermines Congress\u27s carefully-crafted NRD scheme, and is therefore preempted by CERCLA. While this article concludes that contingency-fee arrangements are illegal under CERCLA as currently structured, the author recognizes that CERCLA is flawed because it fails to provide the appropriate financial incentives to facilitate government efforts to bring NRD claims. Thus, the author proposes legislative reform to permit the recovery of the government\u27s reasonable litigation-related attorney\u27s fees and costs when prosecuting CERCLA NRD actions. Such reform will enable governments to bring NRD claims, and to lawfully recoup the litigation costs from the NRD award. Because CERCLA\u27s present scheme does not permit payment of litigation-related attorney\u27s fees, however, the current use of contingency-fee attorneys to prosecute such actions must cease. Pending reform, NRD actions must be prosecuted by either salaried government counsel or, alternatively, special counsel paid a comparable salary or a reasonable fee, drawn from a lawful government appropriation