Chapter 4 argues that, in most cases, pursuing academia means jeopardizing your own future financial well-being as well as that of your family. It discusses implicit and explicit costs, the mistaken but long-lived “six-year standard” for PhD completion, and the time value of money, all en route to dismantling the myth that academia provides financial stability to its flagship workers: tenure-stream professors.

In recent litigation, insurers have argued that state laws that mandate data reporting violate their insurance contracts. While not explicitly framed in freedom of contract terms, their argument reflects a recent trend in lower courts, which see freedom of contract principles as supporting ERISA preemption claims. These courts treat state regulations infringe on the insurers’ abilities to promulgate contracts of their choosing.

This Essay argues that a better approach to considering freedom of contract should consider whether the legislation at issue addresses bargaining imbalances that undermine fair contracting. That approach reflects arguments made in the context of ERISA litigation in the 1990s, where insurers claimed that state laws that required them to accept into their network any provider that met their terms and conditions were preempted by ERISA. States responded that such laws supported freedom of contract between patients and providers, and to correct market imbalances.

In the context of data reporting laws, similarly, access to data corrects market imbalances which undermine contracting between health plans, providers, and consumers. Accordingly, ongoing Biden Administration efforts to improve data transparency should be strengthened. These proposed regulations seek voluntary submission. However, voluntary submission presents a range of problems: mandated data collection is needed precisely to maintain robust contractual arrangements in the private market.

Debates over fiduciary status gained national prominence with the Department of Labor’s 2016 attempt to define an investment adviser fiduciary under the Employee Retirement Income Security Act in 2016. The DOL’s fiduciary rule, however, was vacated by the courts, leaving doubt as to whether and when an investment advisor is considered a fiduciary under ERISA. Moreover, many believe that earlier guidance from the DOL on who is an investment advisor fiduciary is too narrow to protect retirement investors. What is less well known is that many of the debates in ERISA over investment advisor fiduciaries track larger debates in the common law regarding fiduciary status. This chapter explores three parallels between the common law and ERISA in determining fiduciary status. The first is the structure of fiduciary categories and the division between categorical and ad hoc fiduciaries. The second is the tendency to look to whether one person has discretionary authority to determine whether the first person is a fiduciary. The third is the challenge raised by advice giving. Both common law courts and ERISA jurisprudence struggle to determine whether and when advisors, who lack discretionary authority, should be considered fiduciaries. The chapter concludes that trust can serve as a foundation for an advisor’s fiduciary status both in the common law and under ERISA.

The statutory regime that governs employee benefit plans includes fiduciary provisions that track the obligations of loyalty and care developed in trust law. Relationships among key benefit plan actors, however, never have mapped neatly onto the trust law structure of settlors, trustees, and beneficiaries. In particular, the self-interest of the employers that sponsor benefit plans is in tension with their fiduciary obligations. Changes in the relative importance of some types of benefit plans have caused the tensions to become more acute. To address the relationships among benefit plan actors and the tensions between self-interest and fiduciary obligation, courts have developed implementing rules to adapt the fiduciary standards to the employee benefit plan ecosystem. This chapter compares two implementing rules to identify differences in the ways they function and have adapted to the current plan paradigms.