Of Hats and Robes: Judicial Review of Nonadjudicative Article III Functions

Jeffrey L. Rensberger*

We are accustomed to thinking of Article III courts and judges deciding cases and controversies. But, federal judges and courts have historically also engaged in official but nonadjudicative activities. In addition to a history of federal judges serving on nonjudicial commissions, federal judges and the Supreme Court participate in the rulemaking process for the federal procedural and evidentiary rules. Although some argue to the contrary, the Supreme Court has approved such arrangements in the face of separation of powers objections. Since Article III officers and courts perform nonadjudicative duties, the question arises of how federal courts who address a challenge to these nonadjudicative actions should review them. This article focuses on perhaps the most common enlistment of Article III entities in nonadjudicative activities: the creation of the Federal Rules of Civil Procedure (and other federal rules). Since these rules were created by federal judges, is some measure of deference due them when their validity is challenged? The federal procedural rulemaking apparatus resembles federal agency rulemaking, and in that context the Supreme Court has established a strong deference to agencies under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. This article concludes that the federal courts as adjudicators should not defer to the federal judges or courts as rulemakers, because to do so deprives parties of the opportunity to challenge a federal rule in an adjudicated proceeding with the procedural protections that accompany litigation. Finally, the same reasons that lead to a rejection of deference in this context apply equally to other agency rulemaking, leading to the implication that Chevron deference in general should be rejected.

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* © Jeffrey L. Rensberger, 2018. Professor of Law, South Texas College of Law Houston. I wish to express my thanks to my colleagues, Jim Alfini, Josh Blackman, and Rocky Rhodes for their helpful comments on a draft of this article.

On Opioids and ERISA: The Urgent Case for a Federal Ban on Discretionary Clauses

Katherine T. Vukadin*

The American opioid epidemic cuts across all social divisions, touching the employed and unemployed. Those with private health insurance are one of the fastest-growing affected groups, but this group struggles most to get care. Despite their insured status, the privately-insured received treatment at half the rate of those with Medicaid and at even lower rates than the uninsured. This article focuses on a significant barrier to treatment for those in employer-sponsored benefit plans: the discretionary clause. A discretionary clause grants the decision maker broad latitude and ensures that any federal court review is deferential. Claims processing in such a legal climate is stingy; recent investigations show that mental health and addiction claims are treated worst of all. Twenty-five states recently banned discretionary clauses in insurance products, but the bans do not reach most ERISA plans.

This article posits that ERISA should be amended to ban discretionary clauses. The article explains ERISA and discretionary clauses; it then shows the effect of discretionary clauses on actual cases and claims processing, focusing on mental health and sub- stance abuse. The article then explains the recent movement away from discretionary clauses and shows why the arguments against discretionary clauses apply with even greater force to ERISA-governed plans.

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* Professor of Law, Thurgood Marshall School of Law; J.D., 1999, University of Texas School of Law; B.A., 1991, University of Houston.

Regulating from the Ground Up: Controlling Financial Institutions with Bank Workers’ Unions

Emma Cusumano*

In the Wells Fargo accounts scandal, millions of banking accounts were created for customers without their consent. The scan dal cost Wells Fargo customers millions of dollars in direct and indirect charges. Investigations revealed that employees were pressured into creating these false accounts through abusive bank- ing practices promulgated from the top. These practices are not unique to Wells Fargo; instead, they are ubiquitous in the financial services industry.

Current financial regulations do not adequately address how to mitigate banks’ harmful practices. This comment explores the premise that bank worker unionization could serve as a much-needed check on the power of financial institutions and the directors and officers who run them. The comment provides an overview of why large financial institutions are incentivized to engage in harmful and economically unsound banking practices. The comment then outlines the potential for unions to constrain abusive commercial banking interests and recounts current efforts to unionize bank workers. Finally, the comment argues that threats to dismantle current consumer protection enforcement and banking regulations call for a new, worker-centered approach to hold financial institutions accountable to the public.

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* J.D. Candidate, 2019, University of Richmond School of Law. B.A. & Sc., 2013, McGill University. I owe my gratitude to Professor Ann Hodges not only for her guidance in writing and researching this comment, but also for introducing me to the world of labor law with enthusiasm and insight. I would also like to thank the University of Richmond Law Review staff and editors for their excellent work in preparing this comment for publication.

Obtaining and Enforcing a Security Interest in Local Currency Under Article 9 of the UCC

Marina C. Leary* 

Community currency is known by many names including complementary currency, alternative currency, and parallel currency. Community currency operates alongside an official or national currency (e.g., dollars or euros) with the purpose of circulating within a small geographic area to facilitate the sale of goods and services. In other words, community currency refers to a privatized form of currency that is not backed by a government entity. With the increased use of community currency, it has the potential to serve as collateral for a security interest under the Article 9 of the Uniform Commercial Code. Although there are several types of community currency, this article will focus on obtaining and enforcing a security interest in local currency. After analyzing local currency under the UCC in its current form, this comment will offer several suggestions to better handle a security interest in local currency under the UCC.

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* J.D. Candidate, 2019, University of Richmond School of Law. B.A., 2014, Virginia Polytechnic Institute and State University. I would like to thank Professor David Frisch for his invaluable guidance and support throughout the writing process. I would also like to thank Jonathan Lazarow and Frances Lazarow for their thoughtful feedback on my comment. Lastly, I would like to thank the University of Richmond Law Review staff and editors for their assistance during the publishing process.

Evaluating a Permanent Court Solution for International Investment Disputes

Emily Palombo*

Despite the original objective of investor state dispute settlement (“ISDS”)—to create an unbiased arbitration mechanism to resolve conflicts between states and foreign investors—ISDS tribunals have gained the reputation of being one-sided, nontransparent, and inconsistent in decisions rendered. A major reform proposed to address the criticism of ISDS is the creation of one permanent tribunal, rather than numerous ad hoc tribunals constituted separately for each investment dispute. Discussion of ISDS reform in light of its historical context poses the question: is ISDS really a broken system, or have our global priorities and concerns changed over time? While improvements can be made, the current ISDS system is still faithfully serving its original purpose as a neutral tribunal where disputes can be arbitrated. In contrast, the creation of a permanent investment tribunal may thwart the principles envisioned for ISDS at its inception, most importantly, the balance between the protection of state sovereignty and the recognition of the investor as an autonomous private entity. This comment discusses a permanent court solution to international investment disputes in light of the European Council’s 2018 directive authorizing the European Commission to negotiate, on behalf of the European Union, a convention to establish a permanent body to settle investment disputes called the multilateral investment court (“MIC”). It compares the proposed MIC with the structure of the permanent investment tribunal, known as the Investment Court System, contemplated by the Comprehensive Economic and Trade Agreement. Ultimately, this comment concludes that ISDS tribunals can address many concerns through reform to the existing ad hoc system without requiring permanency, thus continuing to respect the original aims of the ISDS system and to foster international investment.

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* J.D. Candidate, 2019, University of Richmond School of Law. B.A., 2014, Christopher Newport University. I am grateful to Professor Chiara Giorgetti for her thoughtful comments on my draft, and to Emma Greger and the rest of the University of Richmond Law Review staff for their time and effort spent ensuring this comment was ready for publication.

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