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Recoupment of Pension Overpayments: Equitable Liens and Meaningful Reform After Montanile
Get PDFThis short paper reviews the current state of the law governing recoupment actions for defined benefit ERISA plans and focuses in particular on actions against retirees who are without fault for the overpayment. The paper argues that the current practices of many plans which focus on recovering overpayments without taking the consequences to the retiree into account are not required by either ERISA or the IRS. The practices which include ceasing all pension payments, huge cuts in payout amounts and unlimited reach back even in cases where the plan fiduciary has clearly breached its duty to participants, cause tremendous harm to participants who are invariably elderly and often disabled and/or living on a small, fixed income. The authors call for a limited reach back period of no more than three years and for a new requirement that plans obtain insurance in order to provide protection to both participants and plans when overpayment errors are discovered
The Deserving Poor, the Undeserving Poor, and Class-Based Affirmative Action
Get PDFThis Article is a critique of class-based affirmative action. It begins by observing that many professed politically conservative individuals have championed class-based affirmative action. However, it observes that political conservatism is not typically identified as an ideology that generally approves of improving the poor’s well-being through the means that class-based affirmative action employs — that is, through redistributing wealth by taking wealth from a wealthy individual and giving it directly to a poor person. This is precisely what class-based affirmative action does: it takes a seat in an incoming class (a species of wealth) from a wealthy individual and gives it directly to a poor person. This Article attempts to reconcile this apparent contradiction. Interestingly, engaging in this project of reconciliation reveals very little about conservatism, but a lot about class-based affirmative action. This Article proposes that class-based affirmative action enjoys widespread support from people across the political spectrum because it is imagined to benefit the “deserving poor.” Unlike the “undeserving poor,” the “deserving poor” are those who cannot be blamed for their poverty; their impoverishment is not due to individual behavioral or character flaws, but rather to structural or macro forces well outside of an individual’s control. Class-based affirmative action enjoys bipartisan political popularity because it is imagined to benefit these respectable poor people — folks who are deserving of a “leg up” in the admissions competition and deserving of programs designed to assist them, even if those programs involve a direct transfer of wealth from the wealthy to the poor. However, that political conservatives and liberals alike currently imagine class-based affirmative action to benefit the deserving poor is a reason for alarm. Alarm bells should ring because, throughout history, the categories of the deserving and undeserving poor have been racialized — and, frequently, racist. To be precise, it has been difficult for people of color — black people, particularly — to access the ranks of the deserving poor. If history is a teacher, then, we might expect that it will be difficult for society to continue to imagine that the beneficiaries of class-based affirmative action are the deserving poor if these class-conscious programs disproportionately benefit racial minorities. Indeed, if history is a teacher, then class-based affirmative action will lose its popularity if poor racial minorities — who have always figured within the cultural imaginary as the embodiment of undeservingness — are (or are imagined to be) class-based affirmative action’s primary beneficiaries. The Article explores the case of AFDC/TANF and unemployed single mothers as an example of the racist nature of deservingness. It argues that, if class-based affirmative action functions to assist people of color in disproportionate numbers, it, like AFDC/TANF before it, will be reimagined to be a program that assists the undeserving poor, and its political tenability will suffer as a result
The Prophylactic Fifth Amendment
Get PDFBefore Miranda was decided, the Court had not squarely confronted the issue of when a violation of the Fifth Amendment occurs. Over fifty years ago, the Court acknowledged that the right against self-incrimination has two interrelated facets: The Government may not use compulsion to elicit self-incriminating statements; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Back then, the “conceptual difficulty of pinpointing” when a constitutional violation occurs — when the Government employs compulsion, or when the compelled statement is actually admitted at trial — was unimportant. Chavez v. Martinez forced the Court to decide when the violation occurs. Six Justices gave us their answer: a violation occurs when compelled incriminating statements are introduced in a criminal case. Coercion during police interrogation does not violate the Fifth Amendment. This answer not only resolved the Fifth Amendment claim raised in Chavez, but it also left no doubt that Americans do not enjoy a right to remain silent. Nor do persons, after Chavez, enjoy a substantive right to be free from coercive governmental questioning, or a constitutional protection against penalties or forms of punishment short of the initiation of a criminal case, such as a contempt order from a judge for failing to answer an incriminating question.When carefully examined, Chavez is a troubling ruling from several vantage points. The most disquieting aspect of Chavez, however, is Justice Thomas’s effort to remake Fifth Amendment law. As will be explained below, Justice Thomas’s opinion in Chavez is ultimately an effort to transform the Self-Incrimination Clause from a substantive right to a judge-made prophylactic rule. Part I of this Article describes Chavez and the reasoning behind the Court’s Fifth Amendment ruling. Part II critiques the legal analysis of Justice Thomas’s and Justice Souter’s opinions in Chavez. While Justices Thomas and Souter insist that their reasoning was commanded by the Court’s precedents, the facts in Chavez not only confronted the Court with a novel legal issue, but also show that the Court’s precedents pointed in a different direction than the result embraced by either Justice. Finally, Part III identifies some of the consequences for Fifth Amendment law under the logic of Chavez
Informed Consent: Charade or Choice
Get PDFThe physicians of ancient Greece valued conversation with their patients. Conversation, however, did not apply to slaves, whose minds and opinions did not matter. More than 2000 years later, slavery has been abolished and the law has joined ethics in setting standards for the doctor-patient relationship. The most important doctrine, in both medical ethics and health law, is the doctrine of informed consent (better termed informed choice ), including its corollary, the right to refuse treatment. Today this doctrine is under attack. The attack is direct from business models that see genuine doctor-patient conversations as inefficient (and a waste of time), and indirect from new information technologies, especially the use of computer screens during doctor-patient encounters. Even the law has helped undermine informed choice by replacing doctor-patient conversations with legal forms
Third-Party Funding in International Arbitration, Second Edition
No full textAbout this book:
Third-Party Funding in International Arbitration expertly reveals the nuances of third-party funding in international arbitration, examines the phenomenon in key jurisdictions, and provides a reliable resource for users and potential users who may wish to tap into and make use of this distinctive funding tool. Since the first edition of this invaluable book in 2012, third-party funding has become more mainstream in international arbitration practice. The second edition includes discussion of recent institutional developments as they relate to third-party funding, including the work of the ICCA-Queen Mary Task Force on third-party funding and how third-party funding is being incorporated into arbitral rules and investment treaties.
What’s in this book:
Focusing on Australia, the United Kingdom, the United States, Germany, the Netherlands, Canada, and South Africa, the authors analyze and assess the legal regime based upon legislation, judicial opinions, ethics opinions, and practitioner anecdotes describing the state of third-party funding in each jurisdiction. In addition to updating summaries of the law of the various jurisdictions, the second edition includes a new chapter addressing third-party funding in investor-state arbitration. Among the issues raised and examined are the following: payment of adverse costs; “Before-the-Event” and “After-the-Event” insurance; attorney financing: pro bono representation, contingency representation, conditional fee arrangements; loans; ethical doctrines affecting the third-party funding industry; possible future bundling, securitization, and trading of legal claims; the risk that the funder may put its own interests ahead of the client’s interests; and whether the existence of a funding agreement must or should be disclosed to the decision maker.
This updated book is well written and covers an interesting, topical, and previously unexplored aspect of international arbitration, and it concludes with observations regarding third-party funding in international investment arbitration and predictions regarding the future of the third-party funding industry worldwide.
How this will help you:
This book ensures appropriate legal knowledge of worldwide jurisdictions’ treatment of third-party funders and proceeds confidently through the maze of unresolved ethical considerations that arise when third-party funding is involved. Ably providing a thorough understanding of what third-party funding entails and what legal parameters exist, this book will be of compelling interest to parties aiming to take advantage of the high values, speed, reduced evidentiary costs, industry expertise, and high award enforceability characteristic of the third-party funding arrangements available in international arbitration.https://scholarship.law.bu.edu/books/1357/thumbnail.jp
The Inadequate, Invaluable Fair Information Practices
Get PDFFor the past thirty years, the general advice for those seeking to collect, use, and share people’s personal data in a responsible way was relatively straightforward: follow the fair information practices, often called the “FIPs.” These general guidelines were designed to ensure that data processors are accountable for their actions and that data subjects are safe, secure, and endowed with control over their personal information. The FIPs have proven remarkably sturdy against the backdrop of near-constant technological change. Yet in the age of social media, big data, and artificial intelligence, the FIPs have been pushed to their breaking point. We are asking too much of the FIPs, yet they are far too entrenched and important to be abandoned.
New privacy risks present an opportune moment to assess the state of the FIPs in the modern world and ask whether they are up to the task. This Essay is an attempt to identify the practical virtues and limitations of the FIPs in order to help privacy law evolve while retaining traditional notions of data accountability. I argue that while we cannot do without the FIPs, it is time for lawmakers to stake out new ground. They should pay more attention to things like anti-competitive behavior and the design of information technologies. The FIPs are necessary, but not sufficient. To make privacy law whole, the FIPs must be treated as one of several frameworks to protect our personal information and people\u27s ability to consent to data practices must be treated as a finite resource
The Second Amendment & Private Law
Get PDFThe Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play—if any—when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law—specifically, the law of torts, contracts, and property—has often been impacted by constitutional considerations, though in seemingly inconsistent ways. The First Amendment places limitations on defamation actions and other related torts, and also prevents courts from entering injunctions that could be classified as prior restraints. On the other hand, the First Amendment plays almost no role in contractual litigation, even when courts are called on to enforce contractual provisions that directly restrict speech. The Equal Protection Clause was famously interpreted to bar the enforcement of a racially restrictive covenant in Shelley v. Kraemer, but in the years since, courts have largely limited that case to its facts.
This Article reconciles these disparate outcomes to develop a coherent theory of the role constitutional rights play in private law. The Article argues that three guideposts inform whether constitutional rights are applied to limit private law:
(1) whether the private law cause of action threatens the core of a constitutional right,
(2) whether placing a constitutional limitation on private law would impair other constitutional rights, and
(3) whether the private law imposition on constitutional rights was freely bargained for.
The Article then applies this framework to the individual Second Amendment right recognized in District of Columbia v. Heller by examining several areas where the right to keep and bear arms could intersect with private law, including negligent entrustment, products liability, and trespass
Confronting \u3cem\u3eCrawford\u3c/em\u3e: Justice Scalia, the Judicial Method, and the Adjudicative Limits of Originalism
Get PDFIf you conduct an online search for something like “Justice Scalia’s most important opinions” or “Justice Scalia’s most influential opinions,” you will (or at least I did) almost always end up with a list that is top-heavy with dissents. That is not surprising. Dissenting opinions gave Justice Antonin Scalia the most freedom to exercise his considerable skills as a writer and were therefore more likely to produce memorable one-liners. They were also the best occasions for him to express his views candidly and forcefully and thus served as the best vehicles for elaboration of his jurisprudential and doctrinal positions. Majority opinions need four other justices to sign on, and while finding four justices to share Scalia’s outlook was a dream to some, the Court in his time never approached that ideal. Indeed, the only majority opinion that seems to pop up with any consistency in these “best of” lists is District of Columbia v Heller
By Any Other Name: Rational Basis Inquiry and the Federal Government\u27s Fiduciary Duty of Care
Get PDFUnder modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something very similar to substantive due process, however, is easily justifiable as a matter of original constitutional meaning once one understands that the Constitution, for interpretative purposes, is best seen as a kind of fiduciary instrument. Fiduciary instruments operate against a background of legal norms that notably include a duty of care on the part of agents. All federal actors under the Constitution exercise delegated authority (from “We the People”) as agents, and thus all federal actors under the Constitution are bound by a duty of care. This duty has much affinity with the business judgment rule of corporate law, in that the scope of the duty of federal actors, as gleaned from eighteenth-century agency and corporate law, probably does not exceed avoidance of gross negligence. Building on a forthcoming book entitled “‘A Great Power of Attorney’: Understanding the Fiduciary Constitution,” which demonstrates in depth the fiduciary character of the Constitution, this article examines the contours of the duty of care that forms part of the background of every constitutional grant of power
The Rise of Federal Title
No full texthttps://scholarship.law.bu.edu/clark_speakers/1005/thumbnail.jp