Peter Stris to Serve as Adviser on ALI’s Third Torts Restatement
Mr. Stris has been invited to serve as an adviser on ALI’s Restatement of the Law Third Torts: Concluding Provisions. This ongoing revision will include new topics such as medical liability, vicarious liability, wrongful death and survival actions, among others. See details here.
Peter Stris, Elizabeth Brannen, and Douglas Geyser on Digital File Copyright
Title: Copyright Act’s Text Constrains First Sale Doctrine’s Application to Digital File Resale (available here)
Publication: Washington Legal Foundation, Legal Opinion Letters
Date: March 1, 2019
Peter Stris and Brendan Maher Serve as Co-Editors of Bloomberg BNA’s ERISA Litigation (6th ed.)
Authors: Jayne E. Zanglein, Sean Anderson, Brendan S. Maher, Peter K. Stris, Lawrence A. Frolik
Title: ERISA Litigation, Sixth Edition and 2019 Cumulative Supplement, available here.
Publication: Bloomberg Law
Date: December 1, 2017 and Supp. 2019
Suggested citation: Jayne E. Zanglein et al., ERISA Litigation, (6th ed. 2017 & Supp. 2019).
Victor O’Connell and Hanna Chandoo on Subject Matter Jurisdiction
Title: Subject Matter Jurisdiction
Publication: BNA ERISA Litigation
Date: Forthcoming (2017)
Suggested citation: Victor O’Connell & Hanna Chandoo, Subject Matter Jurisdiction, in BNA ERISA Litigation (6th Ed.) (forthcoming 2017).
Brendan Maher Publishes Article in Minnesota Law Review
Author: Brendan S. Maher
Title: Regulating Employment-Based Anything
Publication: Minnesota Law Review
Date: March 19, 2015
Abstract: Benefit regulation has been called “the most consequential subject to which no one pays enough attention.” It exhausts judges, intimidates legislators, and scares off theorists. That need not be so. Reality is less complicated than advertised.
Governments often consider intervention if markets fail to make some socially desirable Good X — such as education, health care, home mortgages, or pensions, for example — sufficiently available. One obvious fix is for the government to provide the good itself. A less obvious intervention is for the government to regulate employment-based (EB) arrangements that provide Good X as a benefit to employees and their families. In the United States, such employment-based interventions are massive: they affect trillions of dollars, billions in tax breaks, and millions of people. They have been written into federal law for decades and generate constant litigation before the United States Supreme Court.
Yet, while other regulatory interventions are well-theorized, employment-based interventions are not. There is no coherent account of employment-based interventions as a concept independent from the peculiarities of Good X or the relevant implementing statutes. This is a significant failure, and one that has obscured clear thinking — by legislators, courts, scholars, and the public — on the subject for decades. This Article offers a simple theory of employment-based interventions that (1) explains the common conceit of all such interventions and (2) provides a non-technical framework for evaluating any particular intervention, regardless of Good X. In so doing, it makes the relative appeal (or insufficiency) of employment-based interventions vastly easier to understand.
Suggested citation: Brendan S. Maher, Regulating Employment-Based Anything, 100 Minn. L. Rev. 1257 (2016), available at http://papers.ssrn.com/abstract=2581329.
Brendan Maher Publishes Article in Washington University Law Review
Authors: Paul M. Secunda and Brendan S. Maher
Title: Pension De-Risking
Publication: Washington University Law Review
Date: March 12, 2015
Abstract: The United States is facing a retirement crisis, in significant part because defined benefit pension plans have been replaced by defined contribution retirement plans that, whatever their theoretical merit, have left significant numbers of workers unprepared for retirement. A troubling example of the continuing movement away from defined benefit plans is a new phenomenon euphemistically called “pension de-risking.”
Recent years have been marked by high-profile companies engaging in various actions designed to reduce the company’s exposure to pension funding risk (hence the term “pension de-risking”). Some de-risking strategies convert a federally-guaranteed pension into a more risky private annuity. Other approaches convert the pension into cash for the beneficiary, which may be insufficient to provide lasting retirement income. These strategies have raised many concerns that participants are getting the short end of the stick and that pension de-risking is undermining the statutory purpose of ERISA.
Regulators are only beginning to consider ways to appropriately police pension de-risking behavior. We propose that the government should take an aggressive stance in regulating such conduct. Participants as a class should not be made worse off by a pension de-risking transaction, and the relevant de-risking rules should so reflect. More specifically, regulators should (1) encourage desirable forms of de-risking by establishing regulatory safe harbors; (2) require a battery of procedural safeguards for annuitization transactions; (3) require improved disclosures for cash buyouts; and (4) limit cash buyouts when beneficiaries are not likely to meaningfully understand the potentially adverse consequences of trading a pension for cash.a
Suggested citation: Paul M. Secunda & Brendan S. Maher, Pension De-Risking, 93 Wash. U. L. Rev. 733 (2016), available at http://papers.ssrn.com/abstract=2577159.
Daniel and Douglas Geyser on Writing to Win
Title: Writing Persuasive Facts and Framing the Questions Presented, available here.
Publication: State Bar of Texas CLE – Legal Writing to Win (2015)
Date: January 13, 2015
Suggested citation: Daniel L. Geyser & Douglas D. Geyser, Writing Persuasive Facts and Framing the Questions Presented, in Legal Writing to Win: 2015 Texas Bar CLE (State Bar of Texas, Jan. 13, 2015).
Brendan Maher Publishes Article Entitled Thoughts on the Latest Battles over ERISA’s Remedies
Author: Brendan S. Maher
Title: Thoughts on the Latest Battles over ERISA’s Remedies
Publication: Hofstra Labor and Employment Law Journal
Suggested citation: Brendan S. Maher, Thoughts on the Latest Battles over ERISA’s Remedies, 30 Hofstra Lab. & Emp. L.J. 339 (2013), available at http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1546&context=hlelj.
Brendan Maher Publishes Article on the ACA
Author: Brendan S. Maher
Title: The Affordable Care Act, Remedy, and Litigation Reform
Publication: American University Law Review
Date: October 1, 2013
Abstract: The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is—to date—a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue.
This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the Employee Retirement Income Security Act of 1974 (“ERISA”), converted a protective statute into a uniquely effective piece of federal litigation reform. And, ultimately, it considers whether the ACA—which incorporates, modifies, and rejects ERISA in several notable ways—will experience a similar fate.
Suggested citation: Brendan S. Maher, The Affordable Care Act, Remedy, and Litigation Reform, 63 Am. U. L. Rev. 649 (2014) , available at http://papers.ssrn.com/abstract=2342402.
Peter Stris and Victor O’Connell Publish Article Entitled ERISA & Equity
Publication: ABA Journal of Labor and Employment Law
Suggested citation: Peter K. Stris & Victor A. O’Connell, ERISA & Equity, 29 A.B.A. J. Lab. & Emp. L. 125 (2013).