Law Commons^™

Acting Cabinet Secretaries And The Twenty-Fifth Amendment, James A. Heilpern

University of Richmond Law Review

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 …

Rethinking Retroactive Rulemaking: Solving The Problem Of Adjudicative Deference, Gwendolyn Savitz

University of Richmond Law Review

The Chevron doctrine enables courts to defer to authoritative, legally binding agency interpretations of ambiguous statutes. Though more frequently applied when reviewing rulemaking, the doctrine is actually more powerful when applied to an adjudication. In an adjudication, the agency can attach consequences to past actions made before the interpretation announced in the adjudication itself. Since such a determination will receive deference on review, this declaration effectively becomes a new rule, having gone through neither public notice or public comment. Not only does it become a new rule, it becomes a new rule that is effective retroactively. It is illogical to …

Almond Beverage, Oat Water, And Soaked Soybean Juice: How The Dairy Pride Act Attempts To Remedy Consumer Confusion About Plant-Based Milks, Michelle E. Hoffer

University of Richmond Law Review

With sales of plant-based milks, such as almond and soy milk, on the rise and dairy industry sales declining, dairy industry supporters are taking issue with plant-based milk products calling themselves “milk.”10 In an effort to combat the “mislabeling” of non-dairy products, a few Senators banded together in an attempt to save the dairy industry by creating the DAIRY PRIDE Act.11 The Act was introduced in an effort to prohibit plant-based milk producers from using the term “milk” on their products and instead use a less misleading name, such as “almond imitation milk” or “soy beverage.”12 This Comment argues that, …

Unfoxing Judicial Review Of Agency Policy Reversals Or “We Were Told To Like The New Policy Better” Is Not A Good Reason To Change, Richard W. Murphy

University of Richmond Law Review

Part I of this Article provides context for the debate over the Fox power by tracing the evolution of leading efforts over the last century to legitimize agency policymaking and close the “democracy deficit” that it purportedly creates. Part I focuses in particular on the courts’ development of arbitrariness review as a means of controlling agency policymaking, and it also pays particular attention to the “presidentialist” model that White House control of agency policymaking democratizes and legitimizes it. Part II takes a close look at the Fox litigation itself. This discussion reveals that Justice Scalia’s Fox power, like presidentialism, presupposes …

Regulating From The Ground Up: Controlling Financial Institutions With Bank Workers’ Unions, Emma Cusumano

University of Richmond Law Review

In the Wells Fargo accounts scandal, millions of banking accounts were created for customers without their consent. The scandal 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 banking 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 …

Closed Meetings Under Foia Turn Fifty: The Old, The New, And What To Do, Tyler C. Southall

University of Richmond Law Review

No abstract provided.

Characterizing Power For Separation-Of-Powers Purposes, Tuan N. Samahon

University of Richmond Law Review

The U.S. Constitution parcels "legislative," "executive," and "judicial" powers among the separate branches of the federal government, but leaves those powers undefined. Accordingly, characterizing exercises of power becomes an important threshold inquiry in separation-of-powers disputes. This symposium Essay canvasses four competing judicial approaches to the characterization of power: functional inquiry; identity-of-the-officer formalism; historical induction; and skepticism. In this area, Justice Scalia's formalism has been particularly influential but created considerable tension with original public meaning originalism. This Essay explains how Scalia's formalism led to his embrace of delegation and concludes by cautioning against judicial oversimplification in the characterization inquiry.

Restating The "Original Source Exception" To The False Claims Act's "Public Disclosure Bar" In Light Of The 2010 Amendments, Joel D. Hesch

University of Richmond Law Review

No abstract provided.

Administrative Law, John Paul Jones, John R. Mohrmann

University of Richmond Law Review

This article is a report of certain developments during the last two years relating to the Virginia Administrative Process Act ("the VAPA"), which governs rulemaking and adjudication of cases by state agencies as well as judicial review of both.

Administrative Law, John Paul Jones, Afsana Chowdhury

University of Richmond Law Review

What follows is, first, a report of certain developments during the last two years in the administrative law of Virginia, in particular the law governing rule making by state agencies and judicial review of both rules and cases from state agencies and, second, a report of developments in the law relating to Virginia's Freedom of Information Act.

Administrative Law, John Paul Jones, Molly T. Geissenhainer

University of Richmond Law Review

No abstract provided.

Judicial Independence In Virginia, W. Hamilton Bryson

University of Richmond Law Review

No abstract provided.

Administrative Law, James R. Kibler Jr.

University of Richmond Law Review

No abstract provided.

Tax Incentives: A Means Of Encouraging Research And Development For Homeland Security?, Jennifer L. Venghaus

University of Richmond Law Review

No abstract provided.

Drug Regulations And The Constitution After Western States, Margaret Gilhooley

University of Richmond Law Review

No abstract provided.

Environmental Law, Lisa Spickler Goodwin

University of Richmond Law Review

No abstract provided.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Annual Survey Of Virginia Law: Administrative Procedure, Charles Bonner, John Paul Jones, Henry M. Kohnlein

University of Richmond Law Review

Since the last report on developments in Virginia's law of administrative procedure, both her General Assembly and her courts have been busy making new law. This year's General Assembly revamped the Freedom of Information Act ("FOIA"), and made adjustments to laws regulating the periods in which agencies must decide certain types oflicensing cases and promulgate certain procedural regulations. Meanwhile, the courts of the Commonwealth were active in the field, addressing open questions concerning the following subjects: rulemaking, due process, evidence, timeliness, and judicial review.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Annual Survey Of Virginia Law: Administrative Procedure, Patricia L. Mckenney

University of Richmond Law Review

This article reviews recent developments in the law affecting administrative procedure in Virginia. The 1997 General Assembly made no substantive changes to the Commonwealth's fundamental law of administrative procedure, but it did make numerous amendments to agency law affecting administrative case decisions. Among the major changes to agency procedures include authorizing the Commissioner of Social Services to review local board eligibility decisions, extending the powers of health regulatory boards that govern the licensing of health professionals, and permitting the air, water and waste boards to implement mediation and voluntary dispute resolution proceedings.

Standards Of Judicial Review In The Virginia Administrative Process Act, Mary Renae Carter

University of Richmond Law Review

Section 9-6.14:17 of the Virginia Administrative Process Act sets forth two standards by which courts may review the validity of a state agency's decisions. In formal rulemaking and adjudicatory proceedings, the statute requires an agency to keep a record of all evidence it receives and to make decisions based on this record. Upon review, a court will look to see if there is "substantial evidence" in the record to support the agency's findings of fact. In informal rulemaking and adjudicatory proceedings, the statute does not require an agency to keep an evidentiary record. If the agency has not voluntarily made …

Regulating Indecent Broadcasting: Setting Sail From Harbors Or Sunk By The V-Chip?, Brett Ferenchak

University of Richmond Law Review

"Family values" has become a familiar phrase in all arenas of American life. As a result of the increasing concern over family values in broadcasting, the religious right, as well as the liberal left, have tried to stay the progression of moral decadence in our youth. The concerns have been directed towards violent, sexual and vulgar content in radio, television, and films.

Risk And Regulation: How Much Is Too Much?, Peter H. Kostmayer

University of Richmond Law Review

The Emroch Lecture series was established through the generosity of the late Mr. Emanuel Emroch, his wife Bertha, and other family members and friends. Mr. Emroch held both undergraduate and law degrees from the University of Richmond. He was a distinguished civil trial practitionerin the City of Richmond for many years. Mr. Emroch was listed in Best Lawyers of America, was a Fellow of the International Academy of Trial Lawyers, and of the American College of Trial Lawyers, and was a charter member and past president of the Virginia Chapter of the American Board of Trial Advocates. He was also …

Agency Action, Finality And Geographical Nexus: Judicial Review Of Agency Compliance With Nepa's Programmatic Environmental Impact Statement Requirement After Lujan V. National Wildlife Federation, Matthew C. Porterfield

University of Richmond Law Review

In recent years, there has been an increasing recognition of the need to address the complex and interrelated impacts that result from human interaction with the environment. One of the most effective tools for evaluating these impacts has been the preparation of programmatic environmental impact statements (EISs) pursuant to the National Environmental Policy Act of 1969 (NEPA). The status of programmatic EISs, however, has been called into question by the Supreme Court's decision in Lujan v. National Wildlife Federation, which has been interpreted by numerous commentators as heralding the end of "programmatic" environmental lawsuits. Even more significantly, Lujan has been …

Administrative Aspects Of State Corporation Law, M. Thomas Arnold

University of Richmond Law Review

Modern state corporation statutes are primarily enabling rather than regulatory in nature. In spite of this, there are certain administrative aspects of such statutes with which an attorney practicing in the corporate area must be familiar. This article discusses these administrative aspects of state corporation law.

The Evolution Of Quasi-Judicial Activism In The Legislative Branch: Canadian Commercial Corp./Heroux, Inc., John M. Holloway Iii

University of Richmond Law Review

During the First Congress' debate over the bill to establish the Treasury Department, James Madison described the principal responsibility of the Comptroller of the Treasury as "deciding upon the lawfulness and justice of claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the Executive Branch of Government." With the passage of the Budget and Accounting Act of 1921, the General Accounting Office (GAO) was created and the responsibility to settle …

Annual Survey Of Virginia Law: Administrative Law, James N. Christman

University of Richmond Law Review

This article covers changes made to the Virginia Administrative Process Act (VAPA) during the 1992 session of the General Assembly. It also covers selected recent cases from Virginia courts dealing with state administrative procedure decided between August 30, 1990 and September 17, 1992.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Expanding The Judicial Power Of The Administrative Law Judge To Establish Efficiency And Fairness In Administrative Adjudication, C. Stuart Greer

University of Richmond Law Review

How is an administrative law judge ("ALJ") to know his role in the modern bureaucracy? On the one hand, the law requires the ALJ to adjudicate legal disputes between the government agency and the individual, and on the other hand, a black-robed member of the judicial branch in- structs him that he is out of his jurisdiction. Who wins in this decades-long battle for turf?

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.