EDWARD A. ZELINSKY, Yeshiva University - Benjamin N. Cardozo School of Law
Email: zelinsky@yu.edu

The U.S. Supreme Court has ended the saga of Howard Jarvis Taxpayers Association v. California Secure Choice Retirement Savings Program by declining to review the decision of the U.S. Court of Appeals for the Ninth Circuit. By refusing to review this circuit court decision, the Supreme Court left intact that decision and its holding that ERISA does not block the CalSavers IRA program.

In the wake of these events, some urge the federal government to move into the space occupied by CalSavers and other state programs encouraging less affluent Americans to save for retirement. I instead propose that, the post-Jarvis world, Congress should eschew any mandate that private employers adopt IRAs or other retirement programs for their employees. The states should continue to experiment in this area rather than the federal government imposing a single national pattern. Different states will pursue different courses, thereby testing alternative possibilities. Experimentation by the states will provide information about diverse approaches.

To facilitate such experimentation by the states, the federal government should clarify two legal issues concerning state-run retirement programs for the private sector. First, employers covered by state-administered IRA programs should be permitted to make supplemental contributions to their employees’ IRAs without such employer contributions converting the state IRA program into an ERISA-governed arrangement. Second, employers not required by state law to participate in a state retirement plan for private sector employers should be allowed to voluntarily elect participation without such voluntary participation triggering ERISA coverage for the state plan.

DEBORAH DEMOTT, Duke University School of Law
Email: DeMott@law.duke.edu

This essay - written for an edited volume on intermediaries - focuses on retail transactions in goods sold to consumers that are intermediated by online platforms. Despite the volume of such transactions, a central legal question remains open to dispute in the United States (and elsewhere): is the platform itself responsible when a defect in the product causes personal injury to the purchaser, another user of the product, or a bystander? The question is especially pressing when the third-party vendor is insolvent or proves not amenable to suit in the plaintiff's jurisdiction. In the United States, the linchpin for responsibility in many states turns on whether the platform is characterized as a seller, which would trigger the application of products-liability law. But many courts characterize platforms otherwise, even when the platform controlled all aspects of the transaction up through shipping. This creates a discontinuity in the applicability of products-liability law and externalizes the risk of product defect to purchasers and other third parties.

This essay argues that distinct insights from the law of agency - missing so far from scholarly inquiry in this context - are relevant. When the owner of a platform constructs the appearance that it operates as a seller and is responsible for goods sold via the platform, it resembles a principal in an agency relationship that invites reliance by third parties on an agent's appearance of authority, while retaining the possibility of disavowing a transaction by claiming that the agency relationship was other than it reasonably appeared to be. For example, the robust doctrine of apparent authority denies principals the advantage of acting through an agent clothed with the trappings of authority to the disadvantage of third parties who transact in the reasonable belief the agent acts with authority. In general, agency law is responsive to intentionally constructed appearances on which third parties reasonably rely when the principal attempts to evade the consequences of the appearance it created. Agency's insights strengthen the case against platform owners that construct an appearance of responsibility for goods sold through the platform.

YONG-SHIK LEE, The Law and Development Institute, University of Nebraska College of Law
Email: info@lawanddevelopment.net

Government imposes an externality on industry with its disclosing-forcing activities because it does not bear all of the costs associated with them. This article discusses the impact that such government activities have on corporate freedom. While corporations do not enjoy unfettered freedom—as they are constrained by legal, political, and social requirements and expectations—government must have legitimate grounds to compel corporations to act. The U.S. Secretary of Commerce, who had been investigating the nationwide shortage of semiconductors, recently warned that the government may invoke national security grounds to compel disclosure of sensitive business information held by semiconductor producers. The government has also invoked national security to justify extensive tariffs on imported steel and aluminum products, causing a major trade dispute.

Years of neoliberal policy has created a perceived (but not necessarily actual) separation between government and industry, and this separation tends to encourage and to some extent necessitate government to invoke drastic grounds, such as the irresistible national security grounds, to justify its interventions with private industries. This article presents an alternative approach under which corporate interests and government industrial policy can be better aligned. There is a need to reconsider the role of government in the economy and private industry, and to set a new paradigm that will facilitate a mutually-beneficial partnership between government and industry to avoid inappropriate invocations of the national security ground for commercial purposes in both domestic and international contexts. The proposed partnership will not be inconsistent with the preservation of corporate autonomy and freedom but will actually help to preserve them when government interventions are inevitable to address national economic issues such as the current semiconductor shortage.

W. BRADLEY WENDEL, Cornell University - School of Law
Email: wbw9@cornell.edu

This paper, written for a volume celebrating the 100th anniversary of the American Law Institute, situates the Restatement (Third) of the Law Governing Lawyers within the history of the development of a legal field. The history of the American Bar Association’s pronouncements on ethics, from the 1908 Canons of Ethics through the 1969 Code of Professional Responsibility to the 1983 Model Rules of Professional Conduct (revised in 2002 and 2012), shows an evolution in the subject from aspirational statements of best practices to a Restatement-like set of enforceable legal rules. While some scholars criticized the “demoralization” of legal ethics, I contend that what actually happened is the development of an area of law with its own characteristic normative perspective on the legal profession. Borrowing from Restatement Reporter Charles Wolfram’s history of the project, I see the Restatement as a response to a shift in the organized bar’s own governing ideology, from serving as guardians of the law to purely private guardians of client interests. The Restatement certainly does not envision lawyers as having robust, freestanding duties as guardians of the law, justice, morality, or the public interest. But it does recognize that the obligation of competent, diligent representation of clients – often shorthanded as “zealous advocacy” – is internally limited by a recognition that the law establishes boundaries on what lawyers permissibly may do in the course of representing clients. This represents a normatively attractive vision of legal practice, combining fiduciary loyalty to clients with an obligation to respect and sustain legal institutions.