Each year, in a tradition dating back twenty-three years to Volume 33, the Editor-in-Chief of the University of Richmond Law Review authors acknowledgements to be included in their volume’s final publication. In keeping with tradition, I offer below my gratitude to those who have contributed to this publication and to the overall success of the Law Review, and reflect upon the fifty-seventh volume of our journal.

Matthew L. Brock *

*Editor-in-Chief, University of Richmond Law Review Vol. 57. J.D., 2023, University of Richmond School of Law.

Name, image, and likeness (“NIL”) produced nearly $1 billion in earnings for intercollegiate athletes in its inaugural year. Analysts argue that the shockingly high totals result from disproportionate
institutional support for revenue-generating sports.

Although NIL earnings have soared upwards of eight figures to date, first-year data reveals that significant gender disparities exist. Such disparities raise Title IX concerns, which this Article illustrates using a hypothetical university and NIL collective. As such, this Article reveals how schools can facilitate gender discrimination through NIL collectives, contrary to Title IX. Although plainly applicable to NIL transactions in which schools are involved, Title IX’s current regulatory scheme did not anticipate, nor does it mention NIL. This ongoing omission has produced confusion regarding Title IX’s applicability, especially as it relates to NIL financed by third parties. Accordingly, this Article argues that Title IX should be modernized to explicitly address NIL and offers several recommendations for doing so.

Tan Boston *

* Assistant Professor of Law, Northern Kentucky University.

The Twenty-Fifth Amendment of the United States Constitution contains a mechanism that enables the Vice President, with the support of a majority of the Cabinet, to temporarily relieve the President of the powers and duties of the Presidency. The provision has never been invoked, but was actively discussed by multiple Cabinet Secretaries in response to President Trump’s actions on January 6, 2021. News reports indicate that at least two Cabinet Secretaries—Secretary of State Mike Pompeo and Treasury Secretary Steve Mnuchin—tabled these discussions in part due to uncertainties about how to operationalize the Amendment. Specifically, the Secretaries were concerned that the text of the Amendment did not specify whether Acting Cabinet Secretaries (of which there were three at the time) should be included in the vote. This Article considers that question in light of both the common
law and Supreme Court of the United States precedent, concluding that Acting Secretaries should indeed be counted. However, the Article also highlights the political risks caused by the text’s ambiguity and proposes a legislative solution to sidestep the issue.

James A. Heilpern *

* Senior Fellow, Brigham Young University, J. Reuben Clark School of Law.

Today, defamation litigation is experiencing a renaissance, with progressives and conservatives, public officials and celebrities, corporations and high school students all heading to the courthouse to use libel lawsuits as a social and political fix. Many of these suits reflect a powerful new rhetoric—reframing the goal of defamation law as fighting disinformation. Appeals to the need to combat falsity in public discourse have fueled efforts to reverse the Supreme Court’s press–protective constitutional limits on defamation law under the New York Times v. Sullivan framework. The anti–disinformation frame could tip the scales and generate a majority on the Court to dismantle almost sixty years of constitutionalized defamation law. The new anti–disinformation frame brings with it serious democratic costs without clear corresponding benefits. Defamation lawsuits cannot credibly stem the systemic tide of disinformation or predictably correct reputational harm, but they do threaten powerful chilling effects for the press, super–sized by our current socio-historical context. Especially as claims of disinformation drift away from political speech to economic and social matters, this as a distinct justification increasingly evaporates. Lest progressives too quickly rejoice over the apparent success of their disinformation claims against right–wing media, anti–disinformation defamation litigation presents an equal opportunity invitation—and conservative cases are already on track. The new disinformation frame for defamation suits offers an illusory distraction and further politicizes defamation. Instead, the Article suggests a shift of focus to the audience in order to advance the anti-disinformation project while returning defamation law to its traditional concern with individual reputation.

Lili Levi *

* Professor of Law, University of Miami School of Law.

Over 100 million Americans face healthcare debt. Most of those in debt have health insurance, with the debt often springing from services people thought were covered. Before and even after receiving care, those seeking coverage must run a gauntlet of obstacles such as excessive pre-authorization requests, burdensome concurrent review of care, and retrospective review, which claws back payment after a treatment is pre-authorized and payment made. Increasingly, this procedural tangle leaves people with unwarranted and unexpected medical bills, quickly spiraling them into debt.

Who polices health insurers’ claims practices? What keeps insurance companies from designing overly burdensome pre-authorization requirements or guidelines that deny legitimate claims on a broad scale? The answers depend on the insurance’s source. Employer-sponsored health benefits—the predominant form of health insurance in the United States—is governed by the Employee Retirement Income Security Act, known as ERISA. ERISA regulates health benefits only lightly, but it supplants all state law claims and remedies, giving in exchange only the barest of federal remedies. Over the decades since ERISA’s enactment, health benefit administrators have exploited this permissive environment, moving from an indemnity model, in which claims are paid nearly without question, to one of active involvement in treatment decisions and cost controls. ERISA’s regulation of health plans has not kept pace.

But employer-sponsored health plans have a feature that other health insurance does not: the plans’ decision-makers are deemed fiduciaries under ERISA, legally bound to place plan participants’ interests above their own. Fiduciaries within health plans wield far-reaching powers. They not only decide individual claims, but they also develop guidelines that affect thousands of others, such as the contours of pre-authorization requirements or the applicable standard of care. These broader fiduciary decisions can result in mass claim denials, and it is these powers—and the lack of consequences for abusing them—that this Article addresses.

Part I lays out the drafters’ goals in imposing fiduciary duties and the crucial role of fiduciary status in ERISA’s overall scheme. Part II describes the problems in claims processing that plan participants face, caused in part by a lack of consequences for largescale fiduciary breaches. Part III examines emerging legal theories and remedies for fiduciary breach, designed to ameliorate the problem of mass claim denials and resulting medical debt.

Katherine T. Vukadin *

* Professor of Law, South Texas College of Law.