Citations (1)



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 law

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Date posted: June 27, 2012  

Suggested Citation

Brauch, Jeffrey A., The Federal Common Law of ERISA (1998). Harvard Law & Policy Review, Vol. 21, No. 2, 1998. Available at SSRN: https://ssrn.com/abstract=2093263

Contact Information

Jeffrey A. Brauch (Contact Author)
Regent University - School of Law ( email )
1000 Regent University Drive
Virginia Beach, VA 23464
United States
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