ERISA Principles

ERISA, the detailed and technical amalgam of labor law, trust law, and tax law, directly governs trillions of dollars spent on retirement savings, health care, and other important benefits for more than 100 million Americans. Despite playing this central role in the US economy and social insurance systems, the complexities of ERISA are often understood by only a few specialists. ERISA Principles elucidates employee benefit law from a policy perspective, concisely explaining how common themes apply across a wide range of benefit plans and factual contexts. The book\u27s non-technical language and cross-cutting conceptual organization reveal latent similarities and rationalize differences between the regulatory treatment of apparently disparate programs, including traditional pensions, 401(k), and health care plans. Important legal developments - whether statutory, judicial, or administrative - are framed and analyzed in an accessible, principles-centric manner, explaining how ERISA functions as a coherent whol

A Federal Inmate’s Right to Stay Home

Since the start of the COVID–19 pandemic, the Federal Bureau of Prisons (“BOP”) has, for the first time in history, placed tens of thousands of inmates onto home confinement. Likely due to the unprecedented nature and rapid release of inmates to contain the virus, the BOP failed to timely update their policies and procedures surrounding the disciplinary system of inmates on home confinement. This failure to update resulted in the BOP removing inmates from home confinement and placing them back in prison for minor violations. Furthermore, when the BOP chose to remove an inmate from home confinement, it did so without any proceeding, hearing, or even an explanation. The lack of due process occurred because the BOP continued to use its Inmate Discipline Program Statement—procedures for addressing infractions in prison—as a model for remanding inmates on home confinement back to prison. Instead, the BOP should be following the two-step due process procedures the Supreme Court has outlined for those inmates on parole—a program that is nearly indistinguishable from home confinement. Inmates on home confinement are entitled to the constitutional protections of this two-step process because they have a liberty interest in remaining on home confinement. To ensure the BOP protects the due process rights of inmates on home confinement, this Comment proposes a change in the BOP’s disciplinary system. This Comment first proposes that the BOP promulgate the Morrissey procedural due process rights for inmates on home confinement into the Code of Federal Regulations. This Comment secondly proposes that the BOP revises its Inmate Discipline Program Statement to reflect the prohibited acts and available sanctions that uniquely apply to inmates on home confinement. Collectively, this new regulatory scheme will afford inmates on home confinement the constitutional protections guaranteed to them by the Fifth Amendment, and it will provide clarity to courts when determining the constitutionality of remanding inmates to prison

Putting the Lawyer First: Framing Well-Being in Law as an Ethical Dilemma

A disturbingly high percentage of our students continue to be unwell. In the most recent and comprehensive survey of law student well-being in 2021, almost 70% of law students responded that, in the past twelve months, they believed they needed to seek help for emotional or mental health problems. Embedded screening tools in the survey suggested that 34% of respondents were clinically depressed and 54% suffered from clinical anxiety. 44% of respondents reported being drunk in the past thirty days, 33% had engaged in binge drinking in the preceding two weeks, and 38% had smoked marijuana in the past twelve months. Over 80% of law students responded that they had suffered at least one traumatic event in their lives, with 70% reporting more than one such event. Nearly 16% of law students said they had thoughts of self-harm in the past twelve months, and 11% reported serious thoughts of killing themselves in the last year. These numbers are troubling and above national averages. And for most of these categories, the percentage of students reporting mental health challenges or problematic behaviors has increased since the last comprehensive study of law students in 2014

Manufactured State Immigration Emergencies as State Vigilantism

President Trump shattered norms when he declared a national emergency at the U.S.–Mexico border to build a border wall. State governors have now followed that lead in taking up what Justice Jackson, dissenting in Korematsu v. United States (1944), called the “loaded weapon” of emergency—doing so, like Trump, in the context of the border. Governors of Texas, Arizona, and Florida have all issued state declarations of emergency based on (1) migration, and (2) the Biden administration’s purported failure to engage in immigration enforcement. These state emergency declarations have not been studied or even identified in legal literature as a state mirror to Trump’s federal declaration, even though they are as norms-shattering as the Trump declaration was both facially and in implementation. In justifying the emergency declarations, the governors have used xenophobia and the logic of self-help from international law. In other words, this is state vigilantism: claiming that because the federal government is not using its power to protect states’ residents, the states are unilaterally exercising it themselves under state emergency authority. This state vigilantism is sweeping, extraordinary, and contrary to the Supremacy Clause—particularly in Texas, which has implemented a parallel system of state immigration enforcement and has deployed National Guard soldiers along the border with instructions to force migrants into Mexico. It is also continuous with the erosion of norms begun with Trump’s border wall “emergency.” In addition to the reforms that scholars suggested following Trump’s declaration, to combat state vigilantism, I propose that the federal government not only focus on Supremacy Clause litigation but also exercise its civil rights enforcement authority and that state legislatures and judges limit the scope of state emergency declarations, to exclude policy disagreements with the federal government

Classical Rhetoric: Then and Now

In this context, “rhetoric” refers to the theory and practice of persuasion in the public sphere: law courts, legislative assemblies, ceremonial events, and other political venues.1 Rhetoric was taught to young men in the ancient world to prepare them for civic life, which included participating in the resolution of legal disputes and public debate, acting as jurors, and engaging in military service. The majority of the rhetorical theorists represented in this volume date back to this so-called classical period in Greco-Roman culture, which for our purposes spans from the fifth century BCE until after the end of the Roman Empire around one thousand years later. Although these ancient theorists did not claim to invent persuasion itself, they were some of the first in the Western world to develop a rigorous theory to inform the practice of persuasion and educational institutions devoted to teaching it primarily for use in these contexts. Rhetoric’s influence on education—from grammar to graduate school—and legal training in particular evolved but continued uninterrupted in Europe, then in Britain and the United States, from the classical period until the late nineteenth century. By then, US law schools had made an abrupt curricular shift from studying law as an art form to approaching law as a science, the subject of which was judicial decisions. In the twentieth century, the study of rhetoric outside law schools was divided among English, communication, and speech departments. As a result, US law students today have little familiarity with the rhetorical tradition that developed in part to train students for the practice of law. The goal of this chapter is not to provide a comprehensive history of rhetoric; Larson and Tiscione 12 rather, it is to introduce the historical context and significance of the theorists featured in the volume. We focus our attention on the practice of “forensic” or “judicial” rhetoric—advocacy in legal disputes—because that is the focus of the contemporary texts that the authors in this volume excerpt. We also end our history at the beginning of the twentieth century, when a rupture between training in rhetoric and law occurred in the United States that has only gradually begun to heal

North American Energy in the Crossfire

North America is the beating heart of global energy markets un-dergoing a terrible energy crisis that threatens to upend both the economy and global security. The clearest path out of this global crisis is increasing energy supplies from North America, which can restore energy security and drive a transition to cleaner energy sources. The U.S., Mexico, and Canada have abundant and varied resources to surmount this challenge but are in dire need of stronger cooperation across borders, and between private and public actors to achieve this goal. This Article shows how energy law changes in the U.S. and Mexico present under-studied dangers to cross-border en-ergy trade and sets an agenda for legal reform to enable mutually beneficial fuel and power trade.The United States has recently emerged from history’s biggest oil boom, and along with its neighbors, is becoming the crossroads for an increasingly global two-way trade in oil and gas. The U.S., Mexico, and Canada are major global energy producers and consum-ers, and their different balance of products creates important trading opportunities. The United States and Mexico, in particular, have much to gain from expanded energy trade. Yet there is an increasing danger that this potential will be squandered. Growing movements against eminent domain, infrastructure permits, and energy exports in the United States, and moves to re-nationalize the energy sector in Mexico are making energy companies increasingly wary of investing in the future of U.S.-Mexico energy trade. Ironically, politicians on both sides of the border accuse each other of being the source of un-certainty for the future of the North American energy industry. This Article uncovers the fault lines undermining North America’s energy potential and proposes principles for an energy agreement that could be adopted either by the United States Mexico Canada Agreement (USMCA) partners or by direct negotiations between the U.S. and Mexico to secure the benefits of increased energy trade and increase cooperation in energy and climate policy

Far Out: The Extended Denial of Public Access to Psychedelic Therapeutics

The United States patent regime is designed to promote dissemination of information that undergirds a particular innovation. To incentivize disclosure, inventors are granted a time-limited right to exclude others from practicing the invention, thereby affording the inventor a period in which to commercialize and financially benefit from their inventive contribution. The disclosure provides information sufficient for one of skill in the relevant art to make and use the invention, and the public may freely do so upon the patent’s expiry. Global advancement of human medicine is fundamentally intertwined with the United States patent system; medical progress largely depends upon the exclusionary protections United States patents confer. Ordinarily, the expiry of patents covering therapeutic products and methods yields substantial price reduction, as new market participants seek to establish market share by undercutting the expired patent holder and others. The patent system also yields to the public not only access to new and improved medical technology but also a delayed, unencumbered freedom to make and use the invention upon the patent’s exhaustion. Recently, psychoactive chemical compounds have garnered renewed and international attention. Although many psychedelic substances have had a long history of human use, including within therapeutic contexts, the Controlled Substances Act and related legislation significantly stifled research directed toward developing these substances for medical use. This “artificial” impediment to therapeutic innovation effectively delayed public access to the fruits of earlier innovation

Constitutional Rights and Remedial Consistency

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial inconsistency can be transparent, translucent, or opaque given the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently inconsistent, for instance, because they apply differently to discrete rights on their faces. And indeterminate remedial standards (like the political question doctrine for justiciability and the “plan ofthe Convention” doctrine for state sovereign immunity) are opaquely inconsistent because discerning their variable character requires inductive analysis of actual applications.After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional remedies—while recognizing that nontranssubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent inconsistency more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque inconsistency before relying on overdeterminative reasoning to reach otherwise established results. Among additionalcontributions, by providing innovative tools for centering remedial consistency as an important—but not absolute—aspect of constitutional law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political, thereby reinforcing its legitimacy at this time of widespread skepticism

Self-Defense and Political Rage

This Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree and that juries tend to evaluate reasonableness claims according to their own political positions. All three of these phenomena create challenges for the rule of law due to the increased risk that factually similar cases will turn out differently and that the justice system will merely recreate the monomaniacal, us-versus-them polarization of society at large. This Article surveys the relevant political science and psychological literature on partisanship and reasoning and proposes two interrelated solutions: one pragmatic, at the level of individual trials, and the other cultural, at the level of social discourse. It suggests that judges import what we know about the distortive effects of partisanship into the courtroom through the use of court-appointed psychological experts and jury instructions. Both have shown some success—if tailored precisely to the facts of a specific case—in correcting some forms of juror bias and reasoning errors. This Article further argues that incorporating these processes into the adjudication of politicized self-defense claims will have a broader, expressive value for society as a whole. Trials provide a model for truth-finding, which, for better or for worse, impacts how private citizens evaluate culpability in their day-to-day lives. If trials draw even some people’s attention to the ways in which partisan thinking can generate or justify acts of violence, they may be a force for moderation in how people deal with their political disagreements, which will have benefits far beyond the courtroom

Oops! The Unfortunate (but Basic) Error in the New UCC Article 12

The Uniform Law Commission and American Law Institute have recognized the need for commercial law to govern digital transactions and responded with the proposed addition of a new article to the Uniform Commercial Code (the “Code” or “UCC”), Article 12. Article 12 will govern the transfer of property rights in a particular category of digital assets (controllable electronic records), which would include commonly known digital assets, such as bitcoin and non-fungible tokens (“NFTs”). Although the addition of Article 12 should provide more certainty in transactions involving current and emerging technologies, there is a fundamental problem with the article as it is currently drafted, which, left unresolved, will instead invite legal uncertainty and litigation. The problem is the drafters’ choice to cast the “qualifying purchaser” in the role of the dramatis personae of Article 12. Article 12’s “qualifying purchaser” benefits from a generous rule that allows them to take controllable electronic records free from competing claims. The drafters include a person who obtains a controllable electronic record from a thief or hacker as someone who could be a “qualifying purchaser.” However, in order to be a “purchaser” under the current definition in the UCC, a person must take through a transaction that creates an interest in property. Thieves and hackers obtain no property interest when they steal a controllable electronic record, so a person who takes a controllable electronic record from a hacker could not be participating in a transaction that creates an interest in property. Thus, they could not be a “qualifying purchaser,” as the drafters claim. Most of the uncertainty of the result could have been avoided had the drafters chosen a term other than “purchaser” to describe the beneficiary of Article 12’s liberal take-free rule and defined it in a manner that would effectuate the drafters’ statutory aim. However, despite making the drafters aware of this glaring issue, they have failed to remedy the mistake. This is unfortunate and will likely lead to legal uncertainty and, thus, needless litigation after the article’s enactment. Why rely on courts to tweak sections of the Code if ambiguities are recognized and can be eliminated by careful drafting? If inartful statutory drafting is a source of uncertainty that can easily be reduced without offsetting social costs, efforts should be made to do so