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ERISA'S ROLE IN THE DEMISE OF DEFINED BENEFIT PENSION PLANS IN THE UNITED STATES
No full textIn the decade or so following World War II, employer-provided pension plans became common in private-sector employment in the United States. The prevalent type was the defined benefit (DB) plan, which typically provides the employee and his or her spouse with a lifetime retirement income, paid monthly, based upon a formula that commonly takes account of the employee's compensation and length of service with the employer. Another type, the defined contribution (DC) plan, was also in use, mostly as a second and supplementary plan for highly compensated employees. A DC plan is a savings program, often tax-favored, which provides an account for each participating employee, funded mainly by salary reduction contributions that the employee authorizes together with contributions from the employer and the investment experience on the account. Subject to age and other criteria required under the Internal Revenue Code and the plan's terms, the employee and spouse decide when and in what amounts to draw down on the account in retirement. If at the death of the survivor of them the DC account contains undistributed funds, that balance will pass to heirs or other beneficiaries. Into the early 1980s, DB plans covered about 85 percent of private-sector employees who had any pension coverage. In the years since, employers have retreated from offering DB plans, by terminating existing plans or closing ("freezing") them to new participants, while also ceasing to establish new DB plans. By 2003, only 33 percent of large employers provided DB plans. By 2015, only 3 percent of Fortune 500 employers offered traditional DB plans to newly hired employees. The "de-risking" wave, discussed below in Part III, is further diminishing the extent of the DB system. This article explores the question of what has caused this spectacular abandonment. The conventional understanding, summarized in Part II, attributes the demise of the DB system to large changes in economic conditions and employment patterns, together with the emergence of a viable DC alternative, the 401(k) plan. This article contends that the conventional account is incomplete, because it neglects the role of ERISA, the 1974 federal pension regulatory statute, in making DB plans too burdensome for employers to sustain. Part III discusses features of ERISA that have deterred employers from establishing or maintaining DB plans. Together with the changes reviewed in Part II, ERISA--although meant to promote DB plans--has had the effect of destroying the DB system in the United States
Constraining and Licensing Arbitrariness: The Stakes in Debates about Substantive-Procedural Due Process
No full text"Due process," unmodified by the words "substantive" or "procedural," has long marked the obligation of federal and state governments to protect individuals against arbitrary and unfettered uses of state power. Constitutional guarantees of rights to remedies and access to court date back centuries and, during the twentieth century, were reread to include all persons regardless of race, gender, and class. Moreover, the need for governments to legitimate their own decisions propelled interpretations of the Due Process Clauses of the Fifth and Fourteenth Amendments in conjunction with evolving interpretations of equal protection to ensure that courts provided even-handed treatment. Thus, on occasion, the Supreme Court has concluded that court fees had to be waived, subsets of litigants needed to be provided with lawyers, and failures to pay fines or child support could not result in detention unless judges inquired into the "ability to pay." Judges also assessed the "fairness" of procedures in courts and agencies and at times required revamping modes of decision making. Moreover, due process was the touchstone of the "fairness" of state courts' exercise of jurisdiction over absent litigants and application of their law to out-of-state parties. Thus, in various contexts, and at times in conjunction with other constitutional and common law provisions, due process had come to denote the relationship between government and individuals that entails respect for people expressed through procedures and decision making that are fundamentally "fair." Due process has thus been adaptive, pluralistic, and Janusfaced--looking to protect individuals in their encounters with government while shoring up the authority of governments to enforce their laws. The Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, rejecting the federal constitutional right to an abortion, raises concerns about this account of due process. Our contribution to this Symposium is to sketch the elaboration of due-process principles that, built in earlier eras, came to apply to people who had been denied these protections. We analyze how the Supreme Court has, through the interaction of due process and equal protection, begun to address inadequate litigation resources and asymmetries between individuals and their adversaries in courts and agencies. We sketch the intersection of due-process norms with other constitutional provisions and the embeddedness of aspirations for non-arbitrary and fair treatment across diverse doctrinal categories including family, criminal, banking, and administrative law, as well as in other common and civil law systems. Yet, as Dobbs makes plain, commitments to due process and equality can be undermined. Through clarifying the stakes in debates about due process in a variety of its forms, we hope to encourage mobilization across the political spectrum to reject the potential for a frightening arbitrariness that members of the current Supreme Court seem poised to countenance. Renewed commitments are needed to insist on practices of bounded lawfulness, equality, and fairness that due process has encoded and should continue to promote
Human Rights Norms From Below
No full textVol. 48The conventional approach to international human rights relies extensively,
both in practice and scholarship, on a state-centric approach. In particular, the
discourse on mechanisms for promoting human rights norms tends to operate on
a key assumption: state-level adoption of norms will allow greater penetration of
rights in the underlying society. A fatal flaw with this assumption is its failure to
consider a norm’s long-term prospects of taking hold in the context “below.”
This Article argues that for a norm to be durable, it must be considered morally
credible by the population adopting it. A norm’s moral credibility is affected by
the norm’s alignment with the values of the society below and the manner in
which the norm is introduced to that society. In both regards, it is imperative to
understand the nature of political authority and legal culture in the local context.
In many societies, the preexisting legal landscape includes the presence of
universal legal orders apart from international law. These “alternative
universals” structure those societies and help determine which norms will align
with their values. In addition, states governed by autocratic regimes may
inherently lack credibility with the population, thus impeding the diffusion of
human rights norms there. The presence of autocracy may also provide insight
into the types of norms a population is likely to prioritize
JUSTICE ALITO ON CRIMINAL LAW
No full textThe article focuses on U.S. Supreme Court Justice Samuel Alito's jurisprudence dedicated to the criminal law. Topics discussed include opinion of Justice Alito on categorical approach, one aspect of federal criminal law, insight on the case, Johnson v. United States, wherein Justice Alito's unease with the categorical approach became far more pronounced by 2010, and examples from cases in which Justice Alito had previously opined
Cardozo’s Equitable Method and Judicial Lawmaking’s Auxiliary Role: A Comment on Professor Samet’s Equity, Morality, and Law in The Nature of the Judicial Process
No full textVol. 34-1As Irit Samet expertly demonstrates in her contribution to this Symposium, the jurisprudence of equity is “key” to understanding some of the central ideas Benjamin N. Cardozo sets out in The Nature of the Judicial Process (NJP). This is, as she puts it, because equity and the ideas underlying it serve “as an essential foil for the work [Cardozo] aims to do in the text.” According to Samet, what Cardozo is after is the promotion of a progressive agenda that succeeds in striking the balance between dynamism and stability of a legal system. For her, the aims laid out in the NJP resonate strongly with the aspiration of equity. In her article, she draws attention to the structural similarities between Cardozo’s picture of adjudication, on the one hand, and the jurisprudence of equity, on the other.
On Samet’s view, equity aligns law and morality while carefully balancing judicial creativity and adherence to established rules and precedent. Equity, so she argues, lays out a picture of judicial decision-making that is attuned to the necessity to synchronize law and morality without running roughshod over the rule of law. Samet sees the jurisprudence of equity as exemplifying “the viability of aligning law and morality as a project that judges can and ought to pursue
Uptier Exchange Transactions: Lawful Innovation or Lender-on-Lender Violence?
No full textVolume 40, Issue 1This Note examines the recent phenomenon of “uptier exchange transactions”: transactions in which a borrower takes assignment of existing loans from participating lenders—those lenders holding a majority of the principal amount of the loan—and then issues new superpriority tranches of debt to the participating lenders, subordinating nonparticipating lenders in the process. Uptier exchange transactions were born in the throes of the COVID-19 pandemic and continue to evolve in the courts. This Note analyzes these transactions and all major litigation concerning them to date. It makes a normative argument in favor of curbing the reach of uptier exchange transactions through equitable judicial interpretation. Finally, this Note proposes an amendment to Article 9 of the Uniform Commercial Code that would protect nonparticipating lenders against these transactions, invoking the Trust Indenture Act of 1939 as a textual model
Ne Nya Sexpuritanerna
No full textVol. 34.2:66The northbound train has just arrived at the Old Town train station in Scandic City. The subway conductor is looking for passengers on the platform before preparing for the train’s departure to the next stop. Jasmine and Rebecca hurry past the sliding doors of the well-maintained red train and feel a sense of relief that they caught it. As the ladies run into the train, the conductor shuts the doors and begins to direct the train toward its next destination, into downtown Scandic City.
Scandic City is the capital city of Oceania, which is reputed to be a truly egalitarian society. Scandic City’s extensive police force includes “security officers” that handle low-level and quality-of-life offenses, as well as more professionalized “police officers.” This security organization is central to the democratic socialist agenda in Scandic City because the preservation of law and order is critical to the radical left agenda of the egalitarian New Radicals political party. This egalitarian society reflects the feminist vision of the world. The country has a well-developed statecraft for control, which—for the most stigmatized women and people in Oceania—is experienced as pain
In Search of the Public Interest
No full textVol. 40:759“Public interest” standards in statutory delegations to agencies represent the greatest hopes and the darkest fears of the U.S. administrative state. On the one hand, the public interest standard provides a vessel for agencies to infuse policymaking with the moral and ethical commitments of the community. On the other hand, regulation in the public interest opens the door to the arbitrary exercise of tyrannical state power. Despite the lofty aspirations and ominous warnings about regulation in the public interest, little is known about how agencies actually decide what is in the public interest when charged by statute to do so. This Article seeks to move beyond the rhetoric surrounding regulation in the public interest by conducting a grounded inquiry into how agencies implement public interest standards in the statutes they administer. Using data from agency adjudications under four different statutory schemes dating from the early twentieth century to the present, the study investigates how agencies define the public interest, whether agencies use public interest standards with unfettered discretion based on whatever criteria they wish (as some fear), and whether agencies apply public interest standards in ways that infuse policy making with common good or community values (as some hope)
HOW PARENTHOOD FUNCTIONS
No full textApproximately two-thirds of states have functional parent doctrines, which enable courts to extend parental rights based on the conduct of forming a parental relationship with a child. Different jurisdictions use different names--including de facto parentage, in loco parentis, psychological parenthood, or presumed parentage--and the doctrines arise from different sources of authority--common law, equitable, and statutory. While much has been written about functional parent doctrines, relatively little is known about how they work in practice. This Article fills that gap by documenting how functional parent doctrines operate, examining when, how, and to whom courts apply them. We collected and coded every electronically available functional parent decision issued between 1980 and 2021--669 cases in all--from every jurisdiction that has a functional parent doctrine. Our study reveals that common assumptions about functional parent doctrines fail to reflect the contexts in which such claims arise, the individuals who assert such claims, and the roles that the parties played in the children's lives. Among cases in our data set, relatives, and grandparents in particular, constitute a large share of the functional parents. In the overwhelming majority of cases, the functional parent has been the child's primary caregiver. And courts routinely apply functional parent doctrines to protect children's relationships with the person who is parenting them. In sum, we find that courts commonly apply the doctrines in ways that make children's lives more stable and secure by protecting their relationships with their primary caregivers and preserving their home placements
Climate Policy Buffers
No full textVol. 39 Issue 2The Trump administration wreaked havoc on U.S. climate policy by withdrawing from the Paris Agreement, undoing climate regulations, and undermining the foundation of future regulatory efforts. The Biden administration has begun to reverse the Trump administration’s climate rollbacks, but Democrats have struggled to enact legislation that would directly limit carbon emissions. Because federal climate policy remains rooted in agency rules and policies, the election of the next Republican president may herald further policy whiplash. Swings in climate policy waste limited government resources, foster uncertainty, weaken trust in federal climate policy, undermine climate mitigation efforts, and make future responses to climate change even
more difficult. Understanding how to safeguard administrative climate policy from future rollbacks is essential.
This Article contends that a suite of factors—including features of administrative law, subsidies for renewables, state climate policies and lawsuits, nongovernmental climate initiatives, incompetence, and happenstance—have all played important roles in buffering federal climate policy from more extensive damage. The Article then considers how to bolster these factors to protect federal climate policies from future efforts to undo them