The Grand Irony of ERISA?: Intersectionality of ERISA Preemption and Remedial Issues

paternalism seemingly require that employees not bear the investment risk"). was all right for me to teach one oddball course as long as i carried my burden on employers and plans while simultaneously improving reducing the scope of erisa preemption. i prefer the simple repeal of provider conflicts of interest (july 26, 2007), available at benefits and retirement issues have played a central role in my 2009] restoring balance through a grand bargain 345 half decades ago as he and i first learned of erisa. in the years which flee the supper-time telling of my anecdotes, that erisa over the years hard to do better than this.54 (submitting a publicly financed, privately delivered health care system that will provide all employer mandates and erisa preemption in the ninth circuit, 47 st. tax notes 603 (2008). moreover, we are now posed for a national debate on health care.5 i was one of many research assistants for professor boris bittker markets,9 narrowly, indeed in a fashion which most observers find byzantine and of the cardozo secretarial pool. in those benighted days, we did not seemed very old to me though he was fifteen years younger than i am convinced that, despite all of its flaws and limitations (and these are real employee benefit plans. indeed, for the true believers (and they are 20. see zelinsky, unfunded mandates, supra note 19, at 1380-86. less important than the broader proposal that section 502 be amended as reflects an influential ideology. like most successful ideologies, the 13. see wooten, supra note 2, at 271-72 (explaining that erisa has evolved under a research. remedies imposed by the courts through antediluvian notions of equity, important that that repeal go deep since the space thereby created will be assembled into inherently unstable majorities.18 of the crash of 2008. as an example of misguided paternalism, it is achieve that reform . . . . [but] let there be no doubt: health care reform cannot wait."), with compelling contexts.48 1974: a political history 1-2 (2004) (noting that although erisa was originally intended to thus, the courts have understood the preemptive effect everyone has his own favorite horror story in scott, whose "sole policy interest is to see to it that . . . [president] obama and congress . . . [do] the editors of the hofstra labor & employment law journal have participants because such reimbursement would not constitute equitable restitution). and oversight of the internal revenue serv. of the s. comm. on finance, 101st cong. 127 (1990) and so, as i close, i observe many of you leaning over your coffee journal editors who convened this symposium have focused our legal output. simultaneously, the courts, at the other end of spectrum, the secretary of labor to promulgate regulations concerning "default investment arrangements"). and unforgiving courts: in contrast, there are only fifty states. permitting the states to experiment and instead, limit to the quality of a human relationship which can be established by contemporary telecommunications, there is still a need to convene welfare benefits (2d ed. 2008); john h. langbein, susan j. stabile & bruce a. wolk, because such overtly-articulated walked into the office of the partner to whom i had been assigned. he u.s. 248, 255-58 (1993) (holding that money damages are not "appropriate equitable relief" under have the fine erisa textbooks available to us today.12 intersectionality of erisa independent judgments,16 ("2006 act"), have turned what was originally a complicated entities; plans maintained outside the united states primarily for nonresident aliens; plans the courts, all the employer community need do is block any legislative just as the courts discourage state and local health care initiatives 37. see, e.g., difelice, 346 f.3d at 453; retail indus. leaders ass'n v. fielder, 475 f.3d 180, pubs.uchicago.edu/founders/documents/v1ch13s7.html. ("your representative owes you, not his the disadvantages of the courts' current, overly-restrictive concept legislatures respond to well-organized interest groups.20 & world report, oct. 17, 2008, available at professional life. i wish i could tell you that this resulted from a plan the passive, allegedly unsophisticated years,10 of erisa preemption manifest themselves most acutely today as states employer groups, organized labor, the insurance industry, and other provisions. "bittker told us you are his erisa expert." statute which, however well-intentioned, are today more trouble than leading edge of the baby boomers moves into retirement mode, one important venue: the courts.36 black monday in 1987 or the 1929 crash before the great depression); mary williams walsh, after 29. pub. l. no. 109-280, 120 stat. 780 (2006) (codified as amended in scattered sections of administrative evolution reflect a very precise ideology, what might be constituents not merely the members' energies, but also the members' challenge. id. at 1000-01. however, in a persuasive dissent, circuit judge milan smith was joined tax faculty members at benjamin n. cardozo school of law asked me 350 hofstra labor & employment law journal [vol. 26:341 symposium americans access to health-care, regardless of income), and president's address before a joint as amended at 29 u.s.c. � 1104(c)(5)) (adding to erisa new section 404(c)(5), which authorized carefully conceived while i was young and consistently executed with but i am skeptical that, under the current state of erisa remedial law, 26 hofstra lab. & emp. l.j. 449, 462-63 (2009). there brightscopeblog, http://www.brightscope.com/blog/2009/01/26/ illuminating-the-battle-lines- of erisa will object to the first, deregulating component of the interstate employers unacceptably. see id. however, for present purposes, the specifics of a revised section 502 are the same can be said of the fourth element of the grand bargain: health care reform on hold. . . . now, there will be many different opinions and ideas about how to "i'll respect you in the morning": the speaker really does not believe it anti-remedies provision.49 benefit plans.35 i dare say, more challenging. after days of effort, i had a modest grasp modern public choice and health policy, 7 am. j. tax pol'y 47, 50-51, 58-59 (1988) (explaining the influence of lexis, westlaw, pursuant to her authority, the secretary issued a regulation pertaining to "qualified default 22. see daniel m. fox & daniel c. schaffer, semi-preemption in erisa: legislative process constitution 391, 392 (philip b. kurland & ralph lerner eds., 1987), available at http://press- level47 has prevailed.38 employers since there are literally thousands of localities. see infra note 58. of the possible scope of federal legislation. accordingly, professor these lines carries the possibility of reducing significantly the overall net however, much of this statutory and regulatory complexity has targets for such a deregulation effort. allow me to suggest two of mine. the paternalistic ideology of erisa organized labor, business groups, and the insurance industry in the provisions of erisa). called the ideology of erisa, a paternalistic ideology of good (statement of sen. david pryor, member, s. comm. on finance). 33. see russell korobkin, the battle over self-insured health plans, or "one good overstated. an explanation of erisa which focuses only on those policy, i have grave reservations about the maryland and san francisco cannot be told coherently without acknowledging the influence of legal status as state criminal, banking, securities and insurance laws, individuals, and certainly most rank-and-file employees, are incapable practices have forced employers to bulk up the summary plan document 14. see, e.g., mass. mut. life ins. co. v. russell, 473 u.s. 134, 144, 148 (1985) (holding that at 1009-10 (smith, j., dissenting). simply piled onto the regulatory status quo. what courses i wanted to teach. when i said that i wanted to teach about including speakers at this symposium, who argue that municipal regulation of employee benefits within seconds of starting, i realized that this briefing was not 35. see korobkin, supra note 33, at 130-32. concern about the level of retirement savings or, to be more accurate, the 6. see u.s. dep't of labor, health plans & benefits, http://www.dol.gov/dol/topic/health- e-mail. defederalizing claims for patients' rights, 42 brandeis l.j. 529, 538-39 (2004). but see the grand irony of erisa?: is in large measure a story of good intentions gone awry. even before yale l.j. 1165, 1171-73 (1993). at the end of the day, complexity and compliance costs deter important parts of massachusetts' new health through an expansive notion of erisa preemption, the courts have fine, 444 f.3d 478, 498-500 (6th cir. 2006). it is, moreover, particularly appropriate that this group convenes system, in the evolving pension system 123, 124, 152 (william g. gale et al. eds., 2005). 344 hofstra labor & employment law journal [vol. 26:341 the origins of the ownership society: how the defined contribution paradigm first, there should be a significant reduction of erisa's regulation http://platform.gop.com/2008platform.pdf ("republicans support the private practice of medicine underlying plan documents.52 health care is their principal means of obtaining medical services.6 this presentation and four children who invariably excuse themselves or the incipient concern about rising health care costs.11 employee benefits law: policy and practice (2d ed. 2007). erisa holds sway in the legislative and administrative agencies which cir. 2009), the active judges of the ninth circuit refused to hear en banc an appeal of a panel package. if more regulation is invariably good, there is no warrant for a thud as employees throw it into the garbage can as they leave work. the several years later, as a newly-minted assistant professor, the senior 5. compare united states national health care act, h.r. 676, 111th cong. (1st sess. 2009) erisa section 502(a)(3)); great-west life & annuity ins. co. v. knudson, 534 u.s. 204, 218 challenges which were real but remote in 1974 are today urgent and first step of deregulation can be filled productively, if filled carefully. today. he held in his hands the cch copy of erisa, which he unfair, denying remedies to injured individuals in circumstances which the looming challenge of financing the baby boomers' golden for most working americans, erisa-regulated, employer-provided rules/ (jan. 12, 2009). l. rev. 741, 744-45 (1997). just in time to nudge 401(k) three pages long. it is hard to call a document a "summary" when it has over one third as many 25. see stein & dilley, supra note 24, at 1374. famously observed that the members of parliament owe their offset in part by the other three elements of the bargain. we thus have a remarkably unbalanced situation with congress, the this area. the bottom line is that the courts often treat section 502 as an http://www.gpoaccess.gov/ presdocs/2009/dcpd200900105.pdf ("[w]e can no longer afford to put ownership society: how the defined contribution paradigm changed america (2007). 32. see pension plan complexity: hearing before the subcomm. on private retirement plans judicial phenomenon. ideally, a grand bargain could restore balance to 49. see, e.g., aetna health inc. v. davila, 542 u.s. 200, 221 (2004); difelice, 346 f.3d at 80 (1993) [hereinafter zelinsky, unfunded mandates]; edward a. zelinsky, james madison and sponsoring qualified plans and other fringe benefit arrangements.33 paternalistic ideology which ignores the costs of regulation since such construed erisa's remedial provisions as foreclosing relief in today, of course, one can push some buttons and easily retrieve group, llc, pittsburg, pa.), oct. 2006, at 2, about other fringe benefits.27 regulations without regard to the often counterproductive nature of this the second premise of the ideology of erisa is that most grand bargain will require statesmanship and enlightened self-interest, moreover, the impact of particular interests upon erisa's initial gifts (2d ed. 1989). inventory of erisa stories as the editors of the hofstra labor & difficult law by compounding the difficulties.31 old to learn this"--here i delete an expletive. "besides," he continued, from this premise is drawn the corollary that the federal government coverage). act has been declared erisa-preempted by the u.s. court of appeals families.40 39. employment retirement income security act (erisa) of 1974 � 514, 29 u.s.c. � 1144 treasury's money being regulated.26 here, my example is disclosure of 401(k) investment fees. there is the voluntary system of employer-sponsored plans, excessive regulation and "a grand bargain" to retool erisa for the challenges of the twenty-first me over the years: erisa and its thirty-five year legislative and accommodation of local preferences, these efforts--at least at the state and other electronic databases were in their infancies. the legal alternative," authorized by the 2006 act53 plans/index.htm (last visited apr. 10, 2009) ("most private sector health plans are covered by . . . difelice v. aetna u.s. healthcare, 346 f.3d 442, 453 (3d cir. 2003). edward a. zelinsky benefit plans. on the other hand, as part of a grand bargain, there is a century. this grand bargain would have four major elements. apparent. even before the crash of 2008,3 costs on national employers. see larry j. pittman, a plain meaning interpretation of erisa's the "total value of company pension funds is thought to have fallen by more than $250 billion"). 55. my larger list for abolition would include the minimum required distribution rules, i.r.c. 43. fielder, 475 f.3d at 193, 197-98. see also edward a. zelinsky, maryland's "wal-mart" and should cap noneconomic damages to some reasonable level. visited apr. 10, 2009). employment law journal quite rightly expect something more belief that more regulation is invariably better.28 by seven of his colleagues in concluding that erisa does preempt the san francisco ordinance. id. such regulation is benign. 2007). themselves hampered by erisa preemption. maryland's "wal-mart" growing importance of retirement savings to our national capital "worker-security theory"); gregory s. alexander, pensions and passivity, 56 law & contemp. regulations and administrative programs, much of which, while well- geoffrey k. turnbull & salpie s. djoundourian, overlapping jurisdictions: substitutes or reform pension law, it has come to have profound impacts on "health, life, and disability insurance" splintered ninth circuit has sustained san francisco's new health care special interests.17 workplace retirement plan"); steven hipple, contingent work in the late-1990s, 124 monthly the benefit of all concerned, employers and employees alike. u.s.c. � 1144(b)(2)(a), (b)(4) (2006). as the similarly, the judiciary has construed erisa section 50241 substantial evidence that full disclosure of such fees, while not costless, at can we get to a more balanced and productive approach? the along these lines is, i respectfully suggest, a goal worth pursuing. been well-intentioned, designed and administered by persons who, ("erisa") while i was in law school. in the subsequent thirty- ideology of erisa is rarely articulated because it is so deeply employment retirement income security act (erisa) of 1974 � 4(b), 29 u.s.c. � 1003 (2006) 45. in golden gate restaurant ass'n v. city & county of san francisco, 558 f.3d 1000 (9th today. all employers can easily put their plan documents online or can acknowledged. but this usually unarticulated premise also underpins the 2009] restoring balance through a grand bargain 349 among more recent snafus is the "qualified default investment the issue is not the design or wisdom of such laws. as a matter of as well as other "non-related fields of law[, such as] finance . . . , securities, banking, marriage and will reject the last three elements of the grand bargain, intended to statutory and administrative regulation which should be repealed. it is university review of employee benefits and executive compensation (alvin d. lurie ed., 61 hastings l.j. (forthcoming dec. 2009). explanation is quite revealing since, to maintain the erisa status quo in broadly, foreclosing the states from in a variety of contexts, i have found this insight helpful to explain 21. id.; edward a. zelinsky, the unsolved problem of the unfunded mandate, 23 ohio n.u. packages, is likely to be fragile and difficult to obtain. implementing the 27. see zelinsky, supra note 24, at 7-10. as a result, we cut, pasted, and photocopied thousands of pages of five years, the statute and its import have grown enormously.2 statute into a document emulating the talmud's intricacy while lacking in the labor, chairman miller introduces legislation to require full disclosure of 401(k) fees & however, for mushy moderates like myself, a grand bargain along i now have thirty years' inventory of these kinds of erisa republican nat'l comm., 2008 republican platform 37 (2008), available at of the twenty-first century. these amendments should be added 30. compare tax planning: pension protection act of 2006, newsletter (fitzsimmons fin. intentions.13 and the listener is naive in thinking that the speaker does. in short, 51. i recently reviewed a set of prototype documents from a major supplier of such 53. pension protection act of 2006, pub. l. no. 109-280, � 624, 120 stat. 780, 980 (codified this was during the nixon administration when the release of the white regulation channels putative tax benefits and since the motivation for great detail the terms and operations of qualified retirement plans.25 overburdening employers. 26 u.s.c., 29 u.s.c.). larger point is that, as a first element of a grand bargain, there is much jim rutenberg, health critic brings a past and a wallet, n.y. times, apr. 2, 2009, at a1 embedded. the first premise of this ideology is that the internal public choice at gucci gluch: a procedural defense of tax expenditures and tax institutions, 102 (discussing the campaign of president obama's "most visible conservative opponent," richard more regulation is always better because it is, in large measure, the erisa as it exists today is, in significant part, the product of a 41. erisa � 502, 29 u.s.c. � 1132. 44. edward a. zelinsky, the new massachusetts health law: preemption and highly qualified executives). revenue code's treatment of qualified plans is a tax expenditure.24 house tapes made "expletive deleted" part of our national lexicon.8 the rise of modern public choice theory, the most acute observers of decision upholding the san francisco health care ordinance against an erisa preemption i shall nevertheless resist the temptation to invade further my shortly thereafter, president ford signed erisa into law. secretaries even more unhappily prepared for them to lug to class. least propose that state laws relative to health care be given the same probs. 111, 112-13 & n.10 (1993). absorb some of the regulatory space created in the first stage. the private pension system and how they should inform the social security debate, 58 wash. & going as i had planned. wordlessly but effectively, professor bittker 17. see stephen miller, special interest groups in american politics 1-2 (1983). (2006). this results in unfairness in particular cases rationalize the remedies available to those harmed by erisa supervise and manage the federal government's regulation of retirement in the interests of time, i will let these two examples serve as 2009] restoring balance through a grand bargain 347 channeling government revenues to encourage retirement savings for act: policy and preemption, 28 cardozo law rev. 847 (2006), reprinted in new york and oppose socialized medicine in the form of government-run universal health care system."), and pension benefits: issues in admin. 62, 62-63 (2008). transmit their plan documents as e-mail files. the dol's auditing pension coverage has stayed flat rather than expanding, leaving half of all workers with no cups with the same skeptical look professor bittker had three and one- breach of fiduciary duty under erisa sections 409 and 502(a)); mertens v. hewitt assocs., 508 reports that congress was considering comprehensive legislation ("dol") regulations enforcing erisa's statutory maze implement a net regulatory burden placed on employers and their erisa-governed our federal system is that it encourages experimentation and anecdotes. i also have a reasonably captive audience for the duration of important constituencies.23 ideology of erisa, generating more and more complex statutes and premise, though widely-shared among erisa mavens, is rarely changes to sections 502 and 514. so far, this effort to preserve the status important phenomena such as the persistence of unfunded mandates.21 28. cf. alexander, supra note 13, at 118 (stating that erisa's "twin policies of passivity and 29 u.s.c.). another thought to erisa. then, on my first day as a junior associate, i regulations on top of the existing burdens already placed on employee i think that we should authorize consequential, tort-type 38. see, e.g., mertens, 508 u.s. at 255-58; difelice, 346 f.3d at 453; fielder, 475 f.3d at http://fitzsimmonsfinancialgroup.com/files/tax_planning_the_pension_protection_act_of_2006.p zelinsky to oupblog, http://blog.oup.com/2009/01/ abolish-the-minimum-required-distribution- (sept. 23, 2008). includes so many leading experts on erisa, retirement, and employee employers--particularly small and medium-sized employers--from substantive. so let me attempt to distill the lessons erisa has taught opinion."). erisa as a statutory and administrative phenomenon, and erisa as a two sets of persons will reject out of hand the possibility of this individuals to come together in one place, at one time to discuss matters 11. see healthreform.gov, the costs of inaction: the urgent need for health proposals and other relevant materials. for the benefit of those who regulations, in the evolving pension system 11, 24-25 (william g. gale et al. eds., 2005); see are thousands of municipalities in the united states, many with overlapping jurisdictions. see contemporary idiom capturing the same truth: democratically elected these disparate approaches have led to a pronounced imbalance between cases and articles which my students unhappily lugged to class and the 52. langbein, stabile & wolk, supra note 12, at 571-73. of erisa section 51439 experimenting in ways intended to protect employees and their 352 hofstra labor & employment law journal [vol. 26:341 15. see, e.g., issac kramnick, bolingbroke and his circle 50, 70-75 (1968) (describing employees' interests in their retirement incomes and other employee principal function of the enhanced spd is to make a particularly solid such a course? 1. pub. l. no. 93-406, 88 stat. 829 (codified as amended in scattered sections of 26 u.s.c., 42. e.g., difelice, 346 f.3d at 444, 446, 449, 453. for the challenges which lie before us. as to this judicial part of the erisa story, a public choice erisa, i elicited incredulous stares. why did i possibly want to teach ordinances. if, however, one believes (as i do) that the great strength of fringe benefits, health care in particular, could impose an unacceptable burden on national employee benefits plans, that has not been true in the courts.37 adoption and subsequent evolution is undeniable.22 literature addressing erisa issues was sparse. has helped to pay their not inconsiderable tuition bills. (1998), available at http://www.dol.gov/ebsa/pdf/401krept.pdf; posting of ryan alfred to democratic government in a large republic as the clash of "factions" now. congress passed the employee retirement income security act of attention upon the "grand irony" of erisa. in that spirit, let me suggest but here again my point is not to provide specifics but rather to outline interests or, if they understand those interests, cannot advance them looks a lot smarter today than the folks prodding him to invest in 50. employment retirement income security act (erisa) of 1974 � 102, 29 u.s.c. � 1022 not move the country toward a socialized system"). 2009] restoring balance through a grand bargain 351 symposium is obsolete--that modern technology eliminates the need for rose kukla, the twisted wick: talmud study as spiritual practice for post-modern jews, zeek, gate restaurant association v. san francisco, 50 st. tax notes 503 (2008); edward a. zelinsky, income and employee benefits plans, that ideology does not prevail in a treatment of qualified plans is properly characterized as a tax expenditure. edward a. zelinsky, foresight and skill. the truth, i am afraid, is distinctly less flattering. without a heavy dollop of federal protection.32 �� 401(a)(9)-(11), 417 (2000), and the joint-and-survivor annuity rules, employment retirement made carefully and subtly, can bolster employees' well-being without concerning qualified retirement plans. he asked me to explore this. pension and employee benefit law (4th ed. 2006); colleen e. medill, introduction to 46. edward a. zelinsky, employer mandates and erisa preemption: a critique of golden 341 47. i am increasingly sympathetic to the argument that municipal regulation of employee 9. see maurice obstfeld & kenneth rogoff, the intertemporal approach to the current democratic government have understood the influence of special 60. see, e.g., gies & foster, supra note 58, at 468. 200629 creative lawyers invariably find tensions between spds and the sparingly since we do not want to replant the thicket we have just groups and their respective agendas misses an essential part of the story. two phenomena often in short supply. nevertheless, a grand bargain while he was writing his magisterial treatise on the federal tax law.7 statutory and administrative complexity. congress' successive also j. reed cline, administrative aspects of enhanced fee disclosure in 401(k) plans, 16 j. common stocks. 57. see aetna health inc. v. davila, 542 u.s. 200, 223 (2004) (ginsburg, j., concurring). much about. this barely satisfied my inquisitors who volunteered that it policy vis-�-vis employer-provided fringe benefits, the cumulative compliance burden could impact --should be allowed to proceed. 4. see, e.g., teresa ghilarducci, when i'm sixty-four: the plot against pensions http://www.usnews.com/articles/business/investing/2008/10/17/the-crash-of-2008.html (stating that damages for appropriate erisa cases, should repeal the restrictions on amendments to erisa, most recently the pension protection act of 36. see mass. mut. life ins. co. v. russell, 473 u.s. 134, 144, 148 (1985); mertens v. hewitt today, the investment alternatives." 29 c.f.r. � 2550.404c-5 (2008). part of a grand bargain which entails offsetting deregulation, rather than communicated to me his disbelief that congress would do anything 48. see, e.g., difelice v. aetna u.s. healthcare, 346 f.3d 442, 444, 449, 453 (3d cir. 2003). bittker took me out for a cup of coffee so i could brief him on my 342 hofstra labor & employment law journal [vol. 26:341 consistent with the paternalistic ideology of erisa, believe that they are and of health care in particular would impose an unacceptably onerous burden on national 34. see paul m. secunda, sorry, no remedy: intersectionality and the grand irony of erisa, 26. cf. yun zhang, the economic growth and tax relief reconciliation act of 2001 and the talmud's wisdom.30 and the plan to save them 261-62 (2008) (stating that for the last three decades "overall the 2,400 point drop in the dow jones industrial average in late september 2008 was comparable to my offspring are particularly unappreciative of my observation, as they 2009] restoring balance through a grand bargain 343 ordinance against such a challenge45 354 hofstra labor & employment law journal [vol. 26:341 18. the federalist no. 10 (james madison). interests upon legislative deliberations.15 particular, to argue that the adoption and subsequent evolution of erisa unceremoniously threw at me. declared this elderly partner, "i'm too followed, erisa, as they say, has been very, very good to me. i remain one point, professor bittker indicated to me that he was interested in 7. boris i. bittker & lawrence lokken, federal taxation of income, estates and today's symposium: erisa's preemptive effect and erisa's remedial plaintiff was not entitled to compensatory and punitive damages for the pension administrator's maintained solely to comply with workers' compensation, unemployment compensation or whatever the merits of the spd thirty-five years ago, it makes no sense private pension system reform, 5 u. pa. j. lab. & emp. l. 629, 640, 649-50 (2003) (discussing the income security act (erisa) of 1974 � 205, 29 u.s.c. � 1055 (2006). see posting of edward a. 56. see, e.g., econ. sys., inc., study of 401(k) plan fees and expenses �� 4.2.2, 5.3.3 58. i note an important qualification: i am increasingly convinced by those commentators, pages as the document it is supposedly summarizing. that the regulation which persists will productively and meaningfully protection for plan participants and their families. these statutes and regulations that they appreciate that, under our this crazy." cardozo school of law of yeshiva university. he is the author of the origins of the supreme court's case law, the ninth circuit is correct.46 routinely we hear from those drafting, enacting, and administering participant who let his 401(k) account default into money market funds weight as to the real curriculum. quo has been successful. bittker sagely looked at me and declared, "ed, they won't do anything 59. employment retirement income security act (erisa) of 1974 � 514(b)(2)(a), (b)(4), 29 the treasury and the department of labor statute provisions which are genuinely needed to confront the conditions disability law; and unfunded deferred compensation plans for a select group of top management or when i taught an erisa course in those early years, i was the bane around-401k-fee-disclosure/ (jan. 26, 2009, 12:15 p.m.); press release, h. comm. on educ. & erisa's civil enforcement provisions, 41 san diego l. rev. 593, 640-41 (2004). they are worth, as well as more recent regulation which should never i finished law school and completed my clerkship without giving loophole deserves another," 5 yale j. health pol'y l. & ethics 89, 130-32 (2005). concerted effort to identify and eliminate unproductive burdens on specifically, this third step would revise section 502 to expand and are troubling.42 so that there is no longer anything "summary" about it.51 complexity can deter employers, particularly small employers, from intentioned, is counterproductive of the goal of extending and protecting treasury, and the dol embracing the well-intentioned, paternalistic this regulation-inducing ideology has fueled more and more same time illustrating its wisdom). 31. see sylvester j. schieber, the evolution and implications of federal pension 449; mayeaux v. la. health serv. & indem. co., 376 f.3d 420, 430-32 (5th cir. 2004); briscoe v. thus, my erisa career was launched. as to these state and local health care laws, for present purposes, on the political history of pension reform). erisa, both in its original form and in its subsequent elaborations, changed america 38 n.23, 150-51 (2007). the possibility of a grand bargain. 12. lawrence a. frolik & kathryn l. moore, law of employee pension and july 2007, http://www.zeek.net/707talmud/ (explaining the complexity of the talmud, but at the because there is not enough money to finance them). and localities seek to experiment in the health care arena but find corporations). benefit arrangements.60 wisely ignored this advice. despite the enormous benefits of of mutual concern. account, in 3 handbook of int'l econ. 1731 (g. grossman & k. rogoff, eds., 1995). were not there, the world of legal research was once quite different and, but if that influence cannot be denied, neither should it be preemption and saving clauses: in support of a state law preemption of section 1132(a) of update erisa's regulatory scheme for the twenty-first century. this participants to invest in common stocks and thereby experience the thrill compelling argument that some of the regulatory space achieved by the benefits.34 divorce, [and] real property, to name a few"). lack of such savings by many.4 unproductive legislation of employer-sponsored retirement and fringe 19741 i mumbled the less elegant truth that erisa was the only thing i knew however, this admonition is the employee benefit plan equivalent of he was advancing a normative claim in a pruned. there are, however, statutory and regulatory additions which, if namely, exemption from erisa's heightened preemption standards.59 40. e.g., fielder, 475 f.3d at 191, 193, 197-98. 10. see, e.g., laurence j. kotlikoff & scott burns, the coming generational experimentation, 49 wm. & mary l. rev. 229, 232 (2007). erisa."); see also lorraine schmall & brenda stephens, erisa preemption: a move towards second contemporary function of the spd is to generate litigation as just as famously, james madison described almost fifty billion dollars of tax revenues on private pension plans and individual retirement and serious), erisa can be retooled and rebalanced in a grand bargain a grand bargain law are similarly vulnerable to erisa preemption challenge.44 lord bolingbroke's polemics against british prime minister robert walpole since the late 1680s, i have grave doubts about simply piling this and other remedy quite real harms. enactment of the economic growth and tax relief reconciliation act of 2001, which "sacrificed caveats. most obviously, the grand bargain, like all such compromise reform 1, http://www.healthreform.gov/reports/inaction/inactionreportprintmarch2009.pdf (last on their own of making good decisions about retirement savings and the second such element would be to update erisa to add to the (exempting from coverage health plans established and maintained by government or church of employers and their employee benefit plans. to be meaningful, this 54. posting of edward a. zelinsky to oupblog, http://blog.oup.com/2008/09/401k_crash/ df (detailing the complexity the pension protection act of 2006 adds to erisa), with rabbi elliot periodically like our grandparents did. there is, in the final analysis, a and systemic underdeterrence as plans and employers are relieved of the 19. see james m. buchanan & gordon tullock, the calculus of consent 284-88 since i doubt that this is in the political cards, i would at lee l. rev. 1369, 1373-74 (2001). i dissent from the prevailing consensus that the current tax 8. see 3 stephen e. ambrose, nixon: ruin and recovery, 1973-1990, at 328-29 (1991). the results have been more elaborate statutes and more detailed 24. norman p. stein & patricia e. dilley, leverage, linkage, and leakage: problems with but life is never simple. if the employee-protective ideology of establishing and maintaining erisa-regulated retirement and employee industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your for those willing to entertain that bargain, there remain important rank-and-file employees who cannot discern their own long-term 197-98. translates and elaborates these venerable observations into a reduction must be deep. it must cut away both provisions of the original stymie experiments in state regulation and often frustrate efforts to benefits issues. there are those that suggest that this type of face-to-face documents. the plan document was sixty pages long; the summary plan description was twenty- retirement and employee benefit plans. it would at the same time assure erisa underpins legislative and administrative decision making as to arrangement," but also added "over forty provisions affecting pension plans and benefits"). conversely, those who believe that no regulation is ever productive accommodate different preferences will yield benefits while imposing more modest compliance losses, pensions ask for a change, n.y. times, nov. 20, 2008, at b1 (stating that since the crash, courts, a more unforgiving approach to erisa and employee benefits i am flattered to be making these remarks to a gathering that while the paternalistic or, if you prefer, protective doctrine of complements?, 75 pub. choice 231, 232 (1993). if each of these localities could pursue its own as is true for most of us at this symposium, erisa, employee session of the congress, daily comp. pres. doc. 200900105, at 5-6 (feb. 24, 2009), available at (2002) (holding that a pension plan could not seek reimbursement for medical payments for plan position also has many intelligent and well-intentioned adherents.61 i wish i could recount for you an eloquent response about the there was understandable preemption and remedial issues ideas often matter, particularly when they are wrong. 61. see, e.g., theodore r. groom & john b. shoven, deregulating the private pension 3. see kirk shinkle, the crash of 2008: how bad is it, and when will it end?, u.s. news from the family dinner table when they hear the dreaded term "erisa." edward a. zelinsky is the morris and annie trachman professor of law at the benjamin n. 197-98 (4th cir. 2007). 2009] restoring balance through a grand bargain 353 consequences of bad behavior. violations.57 theory19 http://www.house.gov/apps/list/speech/edlabor_dem/rel072607.html. taken as whole, the grand bargain would reduce substantially the 346 hofstra labor & employment law journal [vol. 26:341 who bolingbroke claimed was controlled by "stockjobbers," financiers, and monopolistic it is time to abolish the summary plan description ("spd").50 storm 66-67, 141 (2004) (arguing that the baby boomers' retirement will wreak havoc on society 23. see generally wooten, supra note 2 (discussing the influence of special interest groups the story of erisa 16. edmund burke, speech to the electors of bristol (nov. 3, 1774), in 1 the founders' properly conditions and channels this tax expenditure by regulating in administrative thicket today surrounding erisa-regulated plans.55 is worthwhile.56 348 hofstra labor & employment law journal [vol. 26:341 paternalism is so disfavored in american political discourse, this (2006). the third element of the grand bargain, like the second, would simultaneously, the courts have often approached erisa in many respects, it seems naive for a law professor, and for me in for the fourth circuit.43 2. see, e.g., james a. wooten, the employee retirement income security act of section 514.58 legislative environment notoriously dominated by what we today call many, articulate and well-intentioned), there is no such thing as (1962); see also edward a. zelinsky, unfunded mandates, hidden taxation, and the tenth when edmund burke issues from a totally different vantage, in an unforgiving fashion.14 have been adopted in the first place. everyone will have his own list of this brings us to the subjects of proxies for a more thoroughgoing revision of the statutory and employers. thomas p. gies & jane r. foster, leaving well enough alone: reflections on the restoring balance through assocs., 508 u.s. 248, 255-58 (1993); aetna health inc. v. davila, 542 u.s. 200, 205, 221 (2004); along the lines i was describing. finally, after ten minutes, professor lab. rev. 3, 21 tbl.13, 23 (2001) (finding a low proportion of contingent workers have pension grand bargain. those irrevocably wedded to the paternalistic ideology amendment: on public choice, public interest, and public services, 46 vand. l. rev. 1355, 1369- protect employees and their families.