Acknowledgements

Acknowledgements

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Acknowledgements

 

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.

 

The NIL Glass Ceiling

The NIL Glass Ceiling

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The NIL Glass Ceiling

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.

 

Acting Cabinet Secretaries and the Twenty-Fifth Amendment

Acting Cabinet Secretaries and the Twenty-Fifth Amendment

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Acting Cabinet Secretaries and the Twenty-Fifth Amendment

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.

 

Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth”

Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth”

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Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth”

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 rhetoricreframing 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 pressprotective constitutional limits on defamation law under the New York Times v. Sullivan framework. The antidisinformation frame could tip the scales and generate a majority on the Court to dismantle almost sixty years of constitutionalized defamation law. The new antidisinformation 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, supersized 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 rightwing media, antidisinformation defamation litigation presents an equal opportunity invitationand 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.

 

ERISA’s Fiduciary Fantasy and the Problem of Mass Health Claim Denials

ERISA’s Fiduciary Fantasy and the Problem of Mass Health Claim Denials

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ERISA’s Fiduciary Fantasy and the Problem of Mass Health Claim Denials

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.

 

Going the Extra Mile: Expanding the Promoting Affordable Housing Near Transit Act

Going the Extra Mile: Expanding the Promoting Affordable Housing Near Transit Act

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Going the Extra Mile: Expanding the Promoting Affordable Housing Near Transit Act

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.