Between legislative and judicial activity, there have been a number of noteworthy developments and changes to the rules governing trusts and estates. Several of these developments turn on questions related to the role of fiduciaries, what responsibilities they have with respect to reporting as well as asset management, and when they can be removed. These questions concerning fiduciaries implicitly address the rights of beneficiaries and the protections available to them. New developments also will have multiple repercussions for estate planners and wealth managers. New planning strategies in response to changes in the law of undue influence may become important to consider and recent judicial opinions may influence a planner’s drafting decisions, particularly with respect to no-contest and arbitration clauses. Overall, the developments clarify the balance of rights and responsibilities allocated between settlors, beneficiaries, and fiduciaries and, in many cases, bolster the rights of beneficiaries and those under legal guardianship.

Hunter M. Glenn *

Allison A. Tait **

*Associate, McGuireWoods LLP. J.D., 2017, University of Richmond School of Law.

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

Energy justice has captured national attention as scholars have spotlighted inequities in energy production and distribution activities, energy and utility regulation, and the clean energy transition. Within this broader context, this Article reflects on the successes and setbacks for the movement toward energy justice through a case study focusing on legislative, executive, and regulatory attempts between 2020 and 2022 to provide relief for Virginia utility customers harmed by the COVID-19 pandemic. The Article begins by defining the problem of energy insecurity and demonstrating that the pandemic exacerbated existing energy insecurity for vulnerable citizens of Virginia. It then traces the efforts over this two-year period of the General Assembly, Governor Northam and the Virginia State Corporation Commission to address the challenge, through temporary moratoria on utility bill payments and other means, including proposals to provide direct relief to utility customers and more sweeping proposals to reform Virginia’s public utility law to comprehensively address energy insecurity concerns. Ultimately, even though only modest relief was made available, advocates could also claim success with the enactment of a new state law that adopted and subsequently modified a new Percentage of Income Payment Program that is to be further refined and implemented by agency actions. Looking more broadly at these actions, one may draw encouragement from the fact that issues of energy insecurity have featured more prominently than ever before in Virginia’s energy policymaking discussions and that activists at all levels have created advocacy networks that may prove durable in the long run. Still, the Article concludes, much more remains to be done to address energy justice during the upcoming multi-decade clean energy transition put in motion by the Virginia Clean Economy Act.

Joel B Eisen *

* Professor ofLaw, University of Richmond School of Law.

A perception exists that the Supreme Court of Virginia has not articulated the legal standard for adjudicating preliminary-injunction motions in Virginia circuit courts. For decades, lawyers and legal scholars have advocated that Virginia trial judges borrow the federal preliminary-injunction standard applied in the United States Court of Appeals for the Fourth Circuit. Virginia trial courts have generally followed that advice. Virginia courts at first applied the Fourth Circuit’s Blackwelder test, which called upon judges to balance the four traditional factors and allowed a stronger balance of-hardship showing to offset a weaker showing of likely success on the merits. After the 2008 decision by the Supreme Court of the United States in Winter, the Fourth Circuit overruled Blackwelder in 2009 in Real Truth About Obama. The Real Truth test requires all four preliminary-injunction factors to be independently satisfied. Since then, Virginia circuit courts have generally applied the Real Truth standard.

This Article shows that ample Virginia precedent and English precedent support the consideration of the four traditional factors, making it unnecessary to rely on federal precedent. Under existing Virginia law, a plaintiff seeking a preliminary injunction must show a likelihood of irreparable harm (absent a statute that provides for an injunction). Beyond that, Virginia cases have balanced the factors. The Supreme Court of Virginia has also allowed a preliminary injunction without a showing that the plaintiff was likely to succeed on the merits, provided the plaintiff demonstrated a “prima facie case.” Whether that showing must be a “fair” prima facie case or “strong” prima case will require further development. But this existing Virginia precedent provides a superior basis for evaluating preliminary-injunction motions in Virginia trial courts than the Fourth Circuit’s Real Truth standard.

Stuart A. Raphael *

*Judge, Court of Appeals of Virginia.