The Federal Common Law of ERISA

66 Pages Posted: 27 Jun 2012

Date Written: 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.

Keywords: ERISA, employee benefit plan, common law, federal common law

Suggested Citation

Brauch, Jeffrey A., The Federal Common Law of ERISA (1998). Harvard Law & Policy Review, Vol. 21, No. 2, 1998, Available at SSRN:

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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