The Federal Common Law of ERISA
Jeffrey A. Brauch
Regent University - School of Law
Harvard Law & Policy Review, Vol. 21, No. 2, 1998
It is accepted doctrine that Congress specifically delegated to federal courts broad power to create federal common-law rights and obligations under employee benefit plans. Courts claim that in creating such rights and obligations they are merely filling gaps in ERISA. Sometimes they are. At other times, however, the only gap is between ERISA as it is written and ERISA as the courts wish it had been written.
This article examines the different uses of federal common law relating to employee benefit plans. It argues that courts have an important, but limited, role in creating a federal common law of ERISA.
Number of Pages in PDF File: 66
Keywords: ERISA, employee benefit plan, common law, federal common lawAccepted Paper Series
Date posted: June 27, 2012
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