• Selected
• Entire List

Abstract:
When the participant in an ERISA-covered employee benefit plan seeks judicial review of the plan administrator's decision to deny a claimed benefit, should the standard of review be deferential, effectively presuming the correctness of the denial, or should the court examine the merits afresh, applying so-called de novo review? In the prominent ERISA case of Firestone Tire & Rubber Co. v. Bruch (1989), the Supreme Court held that, on account of ERISA's protective purpose, the standard of review should be de novo. However, in an ill-considered aside, the Court assumed (and thus effectively decided) that the employer could alter that standard by inserting terms in the plan requiring deferential review. Even though resolving benefit claims is a fiduciary function under ERISA, and even though plan administrators are commonly officers of the employer (or its insurer) who have a financial interest in denying claims, ERISA plans now routinely require deferential review, and courts routinely obey.

A major scandal in claims administration has come to light in recent years that underscores how dangerous it has been to allow ERISA plans to skew the standard of review towards self-serving decisionmakers. Regulatory authorities and courts have now established that Unum/Provident Corporation, the nation's largest disability insurance carrier, was engaged in a program of deliberate bad faith denial of meritorious claims in both ERISA and non-ERISA markets. This article reviews these events.

The Unum/Provident saga shows convincingly that the Supreme Court underestimated the danger of allowing ERISA plan sponsors to require judicial deference to conflicted plan decisionmakers. This article refutes a line of Seventh Circuit ERISA cases that deprecates the dangers of conflicted plan decisionmaking on supposed law-and-economics principles. The article contrasts a strand of Eleventh Circuit authority that has been able to reduce the harm.

A main theme of this article is that the Supreme Court's misstep in Bruch was premised on a misunderstanding about how trust law bears on ERISA. The Court reasoned that because ERISA is rooted in trust law, and trust law allows the settlor to alter the standard of review, ERISA should allow similar latitude to benefit plan sponsors. That syllogism is flawed. The law of trusts is prevailingly a branch of the law of gifts, which aspires to maximize the donative autonomy of the settlor who creates the trust. In ERISA, by contrast, Congress drew upon trust law principles in support of a regulatory purpose, restricting the autonomy of plan sponsors in order to protect plan participants. Trust law rules that conflict with ERISA's regulatory purpose ought not to be transposed to ERISA. A variety of provisions of ERISA are shown to provide textual support for this view.

Abstract:
The duty of loyalty requires a trustee to administer the trust solely in the interest of the beneficiaries. Any transaction in which the trustee has an actual or potential interest violates the sole interest rule, no matter how beneficial the transaction to the beneficiaries. This Article develops the view that a transaction should not give rise to liability merely because the trustee also benefits. Sometimes beneficiaries are better off when a transaction also benefits the trustee. Corporation law has wholly abandoned the sole interest rule, preferring a rule that permits a conflicted transaction that satisfies disclosure and fairness standards.

Important changes have been undermining the trust law sole interest rule. The grievous procedural inadequacies of the equity courts that gave rise to the rule have now been overcome. The rise of professional trusteeship has required that the sole interest rule be abridged to permit trustee compensation. As trusteeship has increasingly become a branch of the financial services industry, major exceptions to the sole interest rule have been recognized to facilitate trustee-provided financial services. The rationale for these exceptions is that they benefit trust beneficiaries by promoting integration of functions and economies of scale.

This Article contends that the exceptions are wiser than the rule they modify. The duty of loyalty should be reformulated to prefer the best interest rather than the sole interest of the beneficiary. A conflicted transaction should continue to be presumed to violate the duty of loyalty, but rebuttably, not conclusively. The trustee should be allowed the defense that the transaction was in the best interest of the beneficiaries.

Abstract:
The Uniform Trust Code, the first national-level codification of the American law of trusts, was promulgated in 2000. The Code was the product of a five-year Uniform Law Commission drafting process that entailed extensive consultation with the trust and estates bar and the trust banking industry. The Code is being widely enacted. Eighteen states and the District of Columbia have thus far adopted it, and many others are likely to follow. Alabama's enactment comes into effect in 2007. For the future, trust law in Alabama and the other Code states will be prevailingly statute law, although the principles developed in prior case law will continue to inform the interpretation and application of the Code. In one sense, the Code marks a great departure by codifying a previously uncodified field. In another sense, however, the Code is simply the latest step in a trend toward statutory intervention in American trust law that has been underway for decades. If we focus on the Uniform Laws, and I shall have more to say about why uniform legislation has so characterized the trust field, we can identify a steady progression of enactments from the 1930s onward.

Abstract:
This introductory text explores the historical origins of the main legal institutions that came to characterize the Anglo-American legal tradition, and to distinguish it from European legal systems. The book contains both text and extracts from historical sources and literature. The book is published in color, and contains over 250 illustrations, many in color, including medieval illuminated manuscripts, paintings, books and manuscripts, caricatures, and photographs.

Two great themes dominate the book: (1) the origins, development, and pervasive influence of the jury system and judge/jury relations across eight centuries of Anglo-American civil and criminal justice; and (2) the law/equity division, from the emergence of the Court of Chancery in the fourteenth century down through equity’s conquest of common law in the Federal Rules of Civil Procedure. The chapters on criminal justice explore the history of pretrial investigation, policing, trial, and sentencing, as well as the movement in modern times to nonjury resolution through plea bargaining. Considerable attention is devoted to distinctively American developments, such as the elective bench, and the influence of race relations on the law of criminal procedure.

Other major subjects of this book include the development of the legal profession, from the serjeants, barristers, and attorneys of medieval times down to the transnational megafirms of twenty-first century practice; the literature of the law, especially law reports and treatises, from the Year Books and Bracton down to the American state reports and today’s electronic services; and legal education, from the founding of the Inns of Court to the emergence and growth of university law schools in the United States.

Abstract:
In a pair of cases decided by 5-4 majorities (Mertens, 1993; Great-West, 2002) interpreting the scope of remedy for wrongdoing under ERISA, the Supreme Court construed the statute's grant of "appropriate equitable relief" to prevent the victims of ERISA-prohibited conduct from being compensated for consequential injury. The Court read ERISA's authorization of "appropriate equitable relief" to have disinterred the law/equity division from the era before the two systems were fused in the 1930s, and the Court treated equity as not having awarded monetary relief. As a consequence, lower courts have held ERISA to preclude remedy in a host of situations in which wrongful plan administration (almost always in violation of ERISA's fiduciary rules) has caused expense, physical harm, or other suffering. This Article explains why and how the Court's interpretation of ERISA remedy law went wrong, beginning with the Court's earlier encounter with the field in Russell (1985). The main theme is that the reach of trust-law principles in ERISA is far deeper and more controlling than the opinions in Mertens and Great-West allow. When federalizing the administration of pension and employee benefit plans in ERISA, Congress made a deliberate choice to subject these plans to the pre-existing regime of trust law rather than to invent a new regulatory structure. In this dimension, ERISA is federal trust law. Congress intended ERISA remedy law to replicate the core principles of trust remedy law in the regulation of pension and benefit plans, including the long-familiar make-whole standard of trust remedy law.

Abstract:
In the 1730s English criminal procedure abandoned its centuries-old rule forbidding the defendant in cases of felony to be assisted by counsel at trial. The judges began to allow counsel to examine and cross-examine witnesses for the defendant, presaging the beginnings of the distinctive Anglo-American adversary system of criminal trial. This article points to two innovations in pretrial practice in the early decades of the eighteenth century that motivated the judges' decision: (1) the increasing influence of solicitors in investigating and preparing witnesses for institutional and private prosecutors; and (2) the growing danger of false witness in prosecutions arising from the series of reward statutes enacted from 1692 onward. These developments -- one-sided lawyerization and the incentive for false prosecution -- unbalanced the old lawyer-free criminal trial and induced the judges to allow the assistance of counsel to offset the dangers of the new prosecutorial techniques.