The Use and Abuse of Labor's Capital
David H. Webber
Boston University School of Law
August 1, 2014
New York University Law Review, Forthcoming
Boston Univ. School of Law, Public Law Research Paper No. 14-7
The recent financial crisis has jeopardized the retirement savings of 27 million Americans who depend on public pension funds, leading to cuts in benefits, increased employee contributions, job losses, and the rollback of legal rights like collective bargaining. This Article examines ways in which public pension funds harm their own participants and beneficiaries by investing against their economic interests, and the legal implications of these investments. In particular, the Article focuses on the use of public pensions to fund privatization of public employee jobs. Under the ascendant — and flawed — interpretation of the fiduciary duty of loyalty, public pension trustees owe their allegiance to the fund itself, rather than to the fund’s participants and beneficiaries, notwithstanding the fact that the duty of loyalty commands trustees to invest “solely in the interest of the participants and beneficiaries” according to ERISA and similar state pension codes. I argue that this “fund first” view distorts the duty of loyalty and turns the role of trustee on its head, leading to investments that undermine, rather than enhance, the economic interests of public employees. I turn to ERISA, trust law, agency law, and corporate law to argue that public pension trustees should consider the impact of the funds’ investments on the jobs and job security of the funds’ participants and beneficiaries, where relevant. I also adduce evidence that these controversial investments are widespread. I propose that public pension funds be governed by a “member first” view of fiduciary duty focused on the economic interests of public employees in their retirement funds, which go beyond maximizing return to the funds. I argue that this view is more faithful to the original purpose of the duty of loyalty than is the “fund first” view. I suggest ways to implement the “member first” view, discuss potential extensions beyond the jobs impact of investments, and assess the proposed reform’s practical effects.
Number of Pages in PDF File: 71
Keywords: fiduciary duty, duty of loyalty, exclusive purpose rule, public pensions, Taft-Hartley, ERISA, pensions, defined benefit
JEL Classification: E22, E62, G23, G31, H55, O16, R53Accepted Paper Series
Date posted: January 18, 2014 ; Last revised: August 2, 2014
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