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.

The Promoting Affordable Housing Near Transit Act (“Act”), introduced in Congress in June 2021 and signed into law six months later, proposes a goal of balancing the disproportionately-high costs of housing and transportation felt by lower-income families by combining these resources in one project: transit-oriented housing developments. Middle-income and wealthy suburbanites have ready access to cities by car, but lower-income urbanites lack access to the suburbs without a private vehicle. While the goal of the Act recognizes this disparate outcome, the Act’s failure to include expansion of mass transit into the suburbs will continue to restrict low-income minorities to urban centers, failing to do more than place a band-aid on a decades-long issue. As jobs increasingly move to the suburbs, placing affordable housing in those areas and creating a transit option for urban dwellers offers a more equitable choice in housing for low-income households. The Act should be amended to require expansion of mass transportation into the suburbs, creating an interconnected system between cities, the suburbs, and suburban neighborhoods. The goal of this Comment is to take the techniques employed in two of the nation’s best transit cities and combine them with the affordability focus of the Act, leading to positive economic development that includes low-income households.

The issue of limited affordable housing is multidimensional, requiring a correspondingly complex solution for this historic problem. Thus, the focus of this Comment touches on just one problematic environment and one potential solution. This Comment uses major metropolitan cities and their surrounding suburbs as the basis of analysis, not to the exclusion of other localities but in recognition of the unsuitability of a one-size-fits-all solution.

It is also important to note here that while the focus of the divide in this Comment is on socioeconomic status and not race, the two are inextricably linked. The history of racial segregation in the United States contributes to the disparity between the racial makeup of the country and of its socioeconomic classes. As you will see, many of the facially socioeconomic decisions made in the last century act as a mask for racially motivated animus. While the examples and solutions provided in this Comment do not focus on the racial disparity in these developments, it must be understood that these implications always lurk beneath the surface. Part I of this Comment will give a brief overview of the history of residential segregation in the United States and how transportation policies contributed to the concentration of poverty in one area, namely urban city centers. This historical overview focuses on mid-twentieth century America, specifically during the post-World War II era where housing subsidies became more abundant and, increasingly, a covert form of discrimination. This Part concludes by discussing why public transportation has failed to make its way to the suburbs and why its expansion into these areas is necessary for the Act’s success.

Part II expounds upon the particulars of the Act and its proposed implementation in the current transportation and housing framework. Finally, Part III offers examples of successful transit-oriented development projects and suggestions of how expansion into the suburbs and multimodal transportation options can cement the Act’s success. This Part proposes amending the Act to mandate that federal transit projects affected by the Act include transportation expansion into the suburbs. While the Act in its current form does not exclude the suburbs from transit development, neither does it set forth an objective to promote it. Because most mass transit exists in major metropolitan areas, the Act should demand inclusion of the suburbs in these new developments to help bridge the divide between urban and suburban communities. Lastly, this Part addresses critiques of current approaches to the housing shortage, such as mixed-income communities, and articulates why the proposals in. this Comment can mitigate some of these concerns.

Emily R. Casey *

* J.D., 2023, University of Richmond School of Law.

Four million Americans left their jobs in July 2021. By the end of that month, the number of open jobs reached an all-time high: 10.9 million. Employees are walking out the door in record numbers as part of a trend so remarkable, we even gave it a name: the Great Resignation. With 4.3 million Americans quitting their jobs in January 2022 and 11.3 million job openings, the Great Resignation is only gaining momentum and showing no signs of slowing down.

And as a consequence of employees exiting in droves, employers are hurting. According to The Work Institute, turnover costs employers approximately thirty-three percent of an employee’s annual salary. Other estimates indicate it could cost as much as 1.5 times a worker’s salary. The cumulative effect of so many workers leaving means employers are taking a serious hit; two experts estimate that employee turnover costs American businesses approximately $1 trillion. Employers need a way to stop the bleeding and mitigate the significant losses they have already incurred. Covenants not to compete can do just that: they allow employers to protect their assets and prevent situations like what we are seeing currently with companies hemorrhaging money due to a mass exodus of employees.

To make matters worse, some studies show a direct correlation between quitting rate and inflation; as the number of workers quitting their jobs increases, the rate of wages and prices also increases. In this situation, workers who are not bound by a noncompete may decide they want to leave their jobs and start looking for opportunities to work elsewhere. They could be enticed by a rival company who is willing to pay them more, and if their current employer values and wants to keep them, they will feel pressured to pay the employee more to retain them. So “[i]n this context, if employed workers search more, wage competition among employers increases, leading to an increase in inflationary pressures; if they search less, wage competition falls and inflationary pressures decrease.” In other words, enforcing noncompete agreements can lead to lower rates of inflation and a better economy.

Given that covenants not to compete were designed for such a time as this, with prices increasing faster than they have since 1982 and employees exiting in record numbers, it only makes sense that employers have been enforcing these covenants more frequently. Surveys show that lawsuits involving noncompetes and trade secret agreements have approximately tripled since the year 2000. This increase in enforcement has garnered widespread attention with states across the country rethinking their laws regarding covenants not to compete and culminated in President Biden calling for regulation at the federal level with Executive Order 14036, “Promoting Competition in the American Economy.”

No question—a lot of people are talking about noncompetes right now, and many have very strong opinions on both sides of the issue. But before we can move forward and decide whether covenants not to compete are a good or bad idea for employers, employees, and the overall economy, we must first go back to the beginning and understand their history. 

Holly E. Fredericksen *

* J.D., 2023, University of Richmond School of Law.

“[I]t was the end of the last quarter of 2019 where I was able to drop the lawsuit against the correctional officer who had sexually harmed me when I knew . . . that the carceral state is not the way for me to find healing . . . . I was not going to seek my transformation and restoration through this system.”

Each year, rhetoric and legislation attacking transgender, non-binary, gender non-conforming and intersex individuals seemingly grows louder. Many political institutions in the United States perpetuate and enable the oppression of these individuals, one of which is the United States prison system. In the quotation above, Dominique Morgan, the Executive Director of Black and Pink, a prison abolitionist organization, describes her process of coming to terms with the harms she experienced in prison as a transgender woman. Morgan, originally charged with murder, lived eighteen months in solitary confinement, six of those on death row.

This quotation from Morgan not only illustrates how the prison system failed to ensure her safety (as a person convicted of a crime), but it also expresses her reckoning with the failure of the justice system to provide her with a process through which she could heal (as someone who survived a crime). Morgan’s story represents just one of the dangers people face in prisons, especially the vulnerability often heightened for people historically marginalized by society.

Transgender, non-binary, gender-non-conforming, and intersex (“TNGI”) individuals experience violence, sexual assault, social stigmatization, and discrimination from society and, in particular, the United States prison system. Despite some efforts to make housing in prisons safer for TNGI people, the system still fails to protect them.

TNGI people face harms in prison that cisgender people do not because of the “hyper-gendered” structure of the prison system. For example, prison staff often misgender TNGI people, and prison housing policies regularly result in placing TNGI people in prisons
according to their sex at birth instead of their gender identity. In addition, TNGI people are ten times more likely to be sexually assaulted in prison than the general prison population.

This Comment seeks to center the experiences of TNGI people living in prisons to shed light on the harms they incur from the United States prison system. Because of the gendered structure of the prison system, TNGI people face additional harms that cisgender prisoners do not experience, and the reforms to prison housing policies have failed to fully address the root of the problem. Restorative justice, through mechanisms used in place of prisons as well as through values-based policymaking, can better account for TNGI people’s well-being by breaking away from the gender binary in prisons and focusing on the diversity of human experiences and methods of relationship-building.

Part I seeks to illuminate the experiences of TNGI people in the United States and, more specifically, in prison. I also introduce the current prison housing policies and practices in the United States. In Part II, I provide a preview of restorative justice, which will be combined with the theories in Part III to form the rest of the argument.

The first section of Part III introduces theories concerning the gendered structure of prisons and how this perpetuates the gender binary. I then expand upon these theories and apply them to the experiences of TNGI people in prison. Next, I explain how the theory of relational restorative justice can help move past the gender binary in prisons and create a more equitable response to wrong-doings. Last, I discuss the current movements concerning prison housing reform and explain why these are lacking.

John G. Sims *

* J.D., 2023, University of Richmond School of Law.