Volume 52, Issue 2

4 posts

Intersex in 2018: Evaluating the Limitations of Informed Consent in Medical Malpractice Claims as a Vehicle for Gender Justice

By Caroline Lowry

Each year, hundreds of individuals are born intersex, meaning they have genitalia that do not meet the criteria for being exclusively male or female. For decades, doctors have performed corrective genital surgeries on intersex infants in an attempt to make it easier for them to grow up as “normal” boys and girls. In recent years, however, there is a growing consensus that cosmetic genital correctional surgeries are both unnecessary and often harmful to the long-term wellbeing of intersex individuals. Given increasing recognition of negative outcomes over the past decade, critics and activists have called for a moratorium on corrective genital surgeries performed on infants. In 2017, an intersex youth named M. Crawford obtained the first legal settlement ever in the United States challenging infant correctional surgeries under the doctrine of informed consent.

This Note explores the implications of this the landmark legal settlement on efforts to combat nonconsensual genital correction surgery performed on intersex children. In particular, this Note explores the strengths and weaknesses of pursuing litigation based on the informed consent claims raised in M.C.’s lawsuit. This Note also offers alternative methods to combat the practice of performing intersex correctional surgeries.

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The Regulatory Leash of the One-Year Refugee Travel Document

By Paulina Sosa

Asylees, refugees, and some Lawful Permanent Residents must obtain a Refugee Travel Document (RTD) from U.S. Citizenship and Immigration Services in order to travel abroad. These non-citizens cannot use passports from their home country, as doing so could result in a loss of their asylee or refugee status. RTDs are only valid for one year and must be renewed annually until the non-citizen naturalizes, if their holders plan to travel abroad. Because most countries require that a tourist’s travel document have a minimum remaining validity of anywhere from three months to one year, RTD holders are inhibited from completing their business or personal travel for many months out of the year.

Part I of this Note introduces the problem of the one-year validity period and discusses the relevant terms and concepts pertaining to asylum and refugee classifications. Part II then discusses the history of refugee travel documents before and after the enactment of the U.N. Convention Relating to the Status of Refugees and the related 1967 Protocol Relating to the Status of Refugees before examining how the United States and other countries comply with their obligations under the Protocol. Part III delves further into the processes of applying for, obtaining, and using a refugee travel document. Part IV discusses how refugee travel documents affect two different kinds of rights: the limited right of reentry into the United States and the right to international travel, both of which also vary according to immigration status. Part V argues for an increased validity period of at least two years and outlines how the change could impact asylees, refugees, and lawful permanent residents. Finally, Part VI outlines the potential barriers to implementing the proposed regulatory reform, such as national security policy and political will.

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Least Restrained Environment: Amending the IDEA to Require Positive Behavioral Interventions and Supports in IEPs

By Helin Azizoglu

Students with disabilities are disproportionately restrained and secluded in schools. Though sometimes these practices are employed as necessary safety measures to de-escalate a behavioral crisis and protect students and staff from injury, they are prone to abusive or unsafe implementation, especially when performed by untrained or inadequately trained staff. In recent years, research has emerged illuminating the risks associated with these practices, which can lead to injury or death when performed improperly.

There is currently no federal legislative or regulatory framework in place addressing the practice of restraint and seclusion in schools, and state practices vary widely. As such, this Note proposes amending the Individuals with Disabilities Education Act, the statute governing the rights of students with disabilities, to affirmatively require the inclusion of positive behavioral interventions and supports in individualized education plans. Additionally, this Note proposes recommendations to bolster protections for students with disabilities at the state level.

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Tiebreaker: An Antitrust Analysis of Esports

By Max Miroff

Electronic sports (esports) offers a novel case study in how antitrust analysis should approach multi-sided markets that rely on the ability of numerous entities to access intellectual property (IP). A game publisher’s IP in its game allows for permissible monopolization, but also creates opportunities for anticompetitive IP misuse. Tournament organizers, teams, players, broadcasters, spectators, and advertisers all need access to publishers’ IP to participate in esports markets. As publishers vertically integrate into the downstream market for esports content in their games, they rationally seek to minimize competitive pressure from other entities in the market. A publisher can do this by using its IP monopoly in its game to dominate the downstream esports market in its game by, for example, refusing to license broadcast rights to independent tournament organizers. This Note argues that in order to promote consumer welfare through market competition, antitrust law should restrict game publishers from using IP rights in their games to monopolize the downstream esports market for those games. Because multi-sided markets which rely on access to IP and blur the lines between producer, intermediary, and consumer are likely to grow, the stakes for effective antitrust analysis in these markets will only continue to climb.

Part I introduces the esports industry and overviews how antitrust law can be used to shape more competitive markets for the benefit of esports consumers. Part II provides an economic analysis of esports in order to define antitrust-relevant esports markets in which enforcement could be appropriate. Part III outlines the structure of a tying claim against publishers that use their IP monopoly over their games to acquire or maintain a monopoly over esports content produced with their games. Part IV contends that a publisher’s IP rights should not insulate it from liability for downstream anticompetitive behavior. Part V argues that antitrust enforcement would be superior both to the creation of an independent esports governance body, because such enforcement would facilitate market solutions rather than top-down rulemaking, and to the creation of a fair use exemption for esports, because such an exemption would be comparatively overbroad.

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