Law Commons^™

For Richer Or Poorer, 'Til Decree Do Us Part - A Spouse's Entitlement To Division Of Pension Funds And Professional Degrees As Marital Property, Linda A. Malone

Linda A. Malone

No abstract provided.

Settlements And Waivers Affecting Pension Benefits Under Erisa, Eric D. Chason

Eric D. Chason

Waivers affecting pension benefits may be entered into as part of a controversy (for example, a settlement agreement) or in isolation (for example, a disclaimer). Under current law, however, it is unclear how these waivers fit within the protections of ERISA, particularly the antialienation rule. Courts have generally honored settlement agreements so long as they are procedurally fair to participants. However, the antialienation rule looms in the background. The IRS and Treasury, in contrast, have focused on waivers outside the settlement context, prohibiting participants from making them but allowing beneficiaries to do so if the waiver satisfies gift-tax rules for …

Outlawing Pension-Funding Shortfalls, Eric D. Chason

Eric D. Chason

Before ERISA, employees faced a large risk that their employers would default or renege on pension obligations. By creating a federal guarantor of pensions (the PBGC), ERISA has greatly reduced this risk. All else being equal, low-risk pensions are worth more to employees but cost more to provide. Congress has never had a coherent policy on who should pay for these extra costs. Moreover, legal scholars have failed to create a theoretical framework for dealing with these costs, focusing instead on the supposed "moral hazard" that the PBGC guaranty creates. This Article inserts itself into the scholarly vacuum, asserting that …

Redressing All Erisa Fiduciary Breaches Under Section 409 (A), Eric D. Chason

Eric D. Chason

No abstract provided.

Same Sex Marriage In A Post-Perry And Windsor America, Kathryn L. Moore, Allison I. Connelly, Ross T. Ewing

Allison Connelly

These materials accompanied a presentation at the 2014 Kentucky Bar Association Annual Convention entitled Same Sex Marriage in a Post-Perry and Windsor America. The focus of this presentation was on: the legal landscape following major LGBTQ civil rights cases; how these cases would impact families in Kentucky; and any employment or retirement issues.

Social Security Reform: Risks, Returns, And Race, Dorothy A. Brown, Karen C. Burke, Grayson M.P. Mccouch

Grayson McCouch

The debate over social security reform has far-reaching implications for the economic well-being of blacks and other minority groups. In this article, we examine how blacks have fared under the existing system, and then consider the likely consequences of moving toward a privatized system. Specifically, we consider the claim, recently advanced by some privatizers, that blacks receive an especially "bad deal" under the existing system and would be better off under a privatized system. We find that, for blacks as a group, this claim tends to overstate both the shortcomings of the existing system and the advantages of privatization. Furthermore, …

Privitizing Social Security: Administration And Implementation, Karen C. Burke, Grayson M.P. Mccouch

Grayson McCouch

This article considers administrative issues that bear on the structure and implementation of any universal, mandatory system of personal accounts within the Social Security system. The central issues involve tradeoffs between relatively standardized, low-cost options with constrained individual choice and limited risk, on the one hand, and more flexible, higher-cost options with enhanced opportunities for individual control and greater risk, on the other hand. A centralized system modeled on the Thrift Savings Plan for federal employees could balance these goals by offering participants a relatively narrow range of investment and withdrawal options, with correspondingly low administrative costs and limited risks. …

Hidden In Plain View: The Pension Shield Against Creditors, Patricia E. Dilley

Patricia E Dilley

This Article examines the virtually unquestioned protection of retirement assets from creditors, in both state and federal law, with a view to determining whether tax qualification or even retirement itself is a sufficient rationale for preserving debtor assets in the face of creditors' claims, and if so, what the limits of such protection should be. The problems of current law stem in large part from the use of tax qualified status as a convenient shortcut for determining the appropriate bankruptcy treatment of retirement accounts. The result is a wide disparity in the treatment of debtors epitomized by the cases of …

Supreme Court’S Decision In Fifth Third Bancorp V. Dudenhoeffer Introduces New Standards For Erisa Fiduciaries, Barry R. Temkin, Kate E. Digeronimo

Barry R. Temkin

In its 2014 decision in Fifth Third Bancorp v. Dudenhoeffer et al., the U.S. Supreme Court held that fiduciaries of plans that hold publicly traded company stock are subject to the same duty of prudence that applies to fiduciaries in general under the Employee Retirement Income Security Act of 1974 (“ERISA”). In doing so, the Supreme Court effectively rejected decades of law applied by nearly all the Courts of Appeals affording fiduciaries of company stock plans a special “presumption of prudence” not available to the fiduciaries of other varieties of ERISA plans. In place of the presumption of prudence, the …

A Tax Lawyer's Observations On Scary Numbers, Politics, And Irresponsibility: A Commentary On Shaviro's Reckless Disregard, Lawrence Lokken

Lawrence Lokken

The fiscal gap is filled by the issuance of government debt, au increasing portion of which is held by foreigners. Although foreigners still seem willing to absorb large amounts of U.S. debt, international organizations express concern over U.S. budgetary deficits. A significant source of the fiscal gap is the Social Security system. Two changes that might resolve Social Security funding issues include raising the minimum age to receive full retirement benefits to seventy years old and raising the taxable wage base. Politically, however, adopting either of these changes soon seems impossible. In addition, current Medicare costs will exceed current tax …

The 11th Annual Employee Benefits Symposium: America's Retirement Crisis: What Can Be Done, 46 J. Marshall L. Rev. Xxiii (2013), Kathryn J. Kennedy

Kathryn J. Kennedy

No abstract provided.

The Ephemeral Promise Of Annuitization For A Secure Retirement

Patricia A. McCoy

No abstract provided.

Retirement Security In The Age Of Devolution, Law & Society Annual Meeting, Natalya Shnitser

Natalya Shnitser

No abstract provided.

Degrees Of Intermediation

Patricia A. McCoy

No abstract provided.

Pension De-Risking, Paul Secunda, Brendan Maher

Paul M. Secunda

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 …

Definitions, Religion, And Free Exercise Guarantees, Mark Strasser

Mark Strasser

The First Amendment to the United States Constitution protects the free exercise of religion. Non-religious practices do not receive those same protections, which makes the ability to distinguish between religious and non-religious practices important. Regrettably, members of the Court have been unable to agree about how to distinguish the religious from the non-religious—sometimes, the implicit criteria focus on the sincerity of the beliefs, sometimes the strength of the beliefs or the role that they play in an individual’s life, and sometimes the kind of beliefs. In short, the Court has virtually guaranteed an incoherent jurisprudence by sending contradictory signals with …

Strictly Liable, David Randall Jenkins

David Randall Jenkins

The Power Point summarizes the Self-Directed IRA Custodian's Five Deadly Sins and Three Punishments for failing to assure Section 4975 impounded management and investment risk diversification policy compliance.

Funding Discipline For U.S. Public Pension Plans: An Empirical Analysis Of Institutional Design, Natalya Shnitser

Natalya Shnitser

Pensions And Passivity, Gregory S. Alexander

Gregory S Alexander

This article discusses how modem fiduciary law has extended equity's tradition of constructing ownership as passive through the corporate pension system. It examines how the corporate pension system as a mode of owning pooled capital is a new stage of passive ownership. This stage creates a different aspect of the familiar problem of separating control from beneficial ownership. Berle and Means argued that the problem that the separation of control from ownership created was economic. The interests of managers and shareholders in the modern corporation diverge, and, they argued, this divergence diminishes the overall efficiency of the modern economy, dominated …

Ninth Annual Seton Hall Employment & Labor Law Scholars' Forum, Natalya Shnitser

Natalya Shnitser

No abstract provided.

Retirement Revolution: Unmitigated Risks In The Defined Contribution Society, Anne M. Tucker

Anne Tucker

A revolution in the retirement landscape over the last several decades shifted the predominant savings vehicle from traditional pensions (a defined benefit plan) to self-directed accounts like the 401(k) (a defined contribution plan) and has drastically changed how people invest in the stock market and why. The prevalence of self-directed, defined contribution plans has created our defined contribution society and a new class of investors — the citizen shareholders — who enter private securities market through self-directed retirement plans, invest for long-term savings goals and are predominantly indirect shareholders. With 90 million Americans invested in mutual funds, and nearly 75 …

Litigating For The Future Of Public Pensions, Paul Secunda

Paul M. Secunda

Public pensions are horribly unfunded, millions of public employees are being forced to make greater contributions to their pensions, retirees are being forced to take benefit cuts, retirement ages and service requirements are being increased, and the list goes on and on. These alarming developments involve all level of American government, from the recent move to require new federal employees to contribute more to their pensions, to the significant underfunding of state and local public pension funds across the country, to the sad spectacle of the Detroit municipal bankruptcy where the plight of public pensions plays a leading role in …

Ockham's Scalpel: A Return To A Reasonableness Standard, Ellen Wertheimer

Ellen Wertheimer

No abstract provided.

Financial Security Scorecard: A State-By-State Analysis Of Economic Pressures Facing Future Retirees, Christian Weller, Nari Rhee, Carolyn Arcand

Christian Weller

As Americans increasingly worry about their retirement prospects, states play an important and growing role in retirement security policy. States already manage long-term care programs for the elderly through Medicaid. Concerned about the impact of future elder poverty on state and local budgets and their local economies, a number of states are exploring the creation of low-cost and low-risk retirement savings plans for private sector workers who lack access to pensions or 401(k)s on the job. Some states have developed programs to help older workers find work.

This report presents the Financial Security Scorecard, designed to inform state-level stakeholders and …

Less Is More: Applying A Modified Reasonable Compensation Standard To Eliminate The Inconsistencies In The Payroll And Net Investment Income Tax Bases, John S. Treu

John S. Treu

The original policy for the implementation of payroll taxes was to impose a tax on wages as both a funding mechanism for, and a limitation to, qualifying for social security. However, the self-employment tax base developed severe inconsistencies with this original policy and among different tax entities by including certain returns on capital investments in the tax base. At present, different payroll tax obligations arise for similarly situated tax payers based solely on the type of entity the owner elects to be taxed as under the check-the-box regulations. These inconsistencies resulted from misguided efforts by congress and the treasury to …

La Pensión Familiar En Colombia: ¿Una Solución Al Déficit Pensional Colombiano?, Fernando Castillo Cadena, Ana María Muñoz Segura

Fernando Castillo Cadena

Colombia enacted the “family old-age pension” through Law 1580/12. This pension is not one of exceptional type, which is granted to certain beneficiaries: it is one that tries to expand the coverage of the pension system in a novel way. Thus, the right to a pension no longer will be a product of regular contributions or savings made on an individual basis, but one that will correspond to the sum of efforts made by the couple that makes up a family group. So, in the event that an affiliate not eligible to obtain an old-age pension on an individual basis, …

The Aging Of The American Law Professoriate, David Barnhizer

David Barnhizer

A recent (rather tasteless) article argued: “Professors approaching 70 … have an ethical obligation to step back and think seriously about quitting. If they do remain on the job, they should at least openly acknowledge they’re doing it mostly for themselves.” In “The Forever Professors: Academics Who Don’t Retire Are Greedy, Selfish, and Bad For Students”, the insensitive author added: “the number of professors 65 and older more than doubled between 2000 and 2011.” The author’s most intellectually savage comments were that: “faculty who delay retirement harm students, who in most cases would benefit from being taught by someone younger …

Federalism And Fiduciaries: A New Framework For Protecting State Benefit Funds, Richard E. Mendales

Richard E. Mendales

The financial crisis has underlined difficulties faced by states and their subdivisions in paying benefits to their employees. The most spectacular example is Detroit's bankruptcy, but state and local employers across the country face sharp cuts in benefits as their employers fight for solvency. A federal solution such as ERISA is precluded by considerations of federalism and the impracticability of getting major legislation through Congress. This Article proposes an alternative solution: a uniform state code, following other uniform state laws such as the Uniform Commercial Code, that states could adopt to govern both state and local plans. It would finance …

Do Inherited Iras Protect Assets Well?, Lindsey Paige Markus, Assistance From Evan D. Blewett

Evan Blewett

Whether a client has a complex or simple estate plan, failure to properly address a retirement plan (IRA) beneficiary designation may cause havoc. Regardless of what a client’s estate plan may say, the beneficiary designation under the client’s IRA governs.

Breaking The Glass Slipper: Reflections On The Self-Employment Tax, Patricia E. Dilley

Patricia E Dilley

Lawmakers and their staffs, in drafting tax legislation, often resemble Prince Charming looking for Cinderella with that glass slipper in hand -- rather than start from scratch and draft a completely new tax provision. It is frequently easier, faster, and more reassuring to taxpayers and tax practitioners to use an existing statute or approach and simply amend it slightly to make it fit the need of the new provision. However, problems can arise from this approach.

In the original Grimm Brothers' version of the Cinderella story, for example, the wicked stepsisters were each so anxious to be the chosen one …