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Prof. Monopoliís Yale Law Journal Article Calls upon Congress to Address Gender Disparity in ERISA

Professor Paula Monopoli

Professor of Law and Marbury Research Professor Paula Monopoli published the article "Marriage, Property and [In]Equality: Remedying ERISA's Disparate Impact on Spousal Wealth" this month on The Yale Law Journal Online.

Professor Monopoli's article identifies for the first time an untended distortion in the accumulation of spousal wealth as a result of† ERISA's fundamental framework.† The article also evaluates †the impact of the economic downturn on defined contribution retirement plans and calls upon Congress to rectify the gender disparity embedded in federal law governing retirement plans around the nation.

"The common perception is that contemporary law and policy aim to facilitate equality within marriage, including the area of property ownership," Professor Monopoli wrote. "Equitable distribution is grounded in a joint partnership theory of marriage that recognizes the contributions of both spouses, whether or not purely monetary."But given the present structure of the Employment Retirement Income Security Act (ERISA), Professor Monopoli found that the federal policy which incentivizes saving through defined contribution plans is producing a result that is actually in tension with contemporary laws and policies that facilitate equality within marriage, since it is producing an increasingly unequal concentration of wealth in the hands of husbands rather than wives within intact marriages. While defined contribution plans are governed by federal law, marital property is generally governed by state law. ERISA has been found to preempt state law, even in areas like inheritance, property and family law that are traditionally reserved to the states, she noted.

Professor Monopoli, founding Director of the Women, Leadership & Equality Program at the School of Law, proposes that Congress amend ERISA to confer an immediate ownership interest in one-half of such assets in each spouse as they are earned and contributed by one spouse. †This would shift the conceptual paradigm under ERISA to reflect a regime akin to a community property theory of marital property.† †The article combines Professor Monopoli's teaching areas including property, inheritance, and gender law.

"I find it heartening that the data supported my insight," Professor Monopoli said. "This proposal would introduce a significant change to theory underlying separate property law regimes and the recession gives a great example as to why this matters in intact marriages. It means a great deal to be able to contribute an original insight to the scholarship in this area of the law ††through publications like this one."

She is a nationally-known scholar in the areas of inheritance law and the status of women in the legal profession. Professor Monopoli received a B.A., cum laude, from Yale College in 1980, and a J.D. from the University of Virginia School of Law in 1983. Her most recent publications include "Gender and Constitutional Design" in the Yale Law Journal and "Gender and Justice: Parity and the United States Supreme Court" in The Georgetown Journal of Gender and the Law. She has also published in the Stanford Law & Policy Review and the Wisconsin Law Review among others.† Professor Monopoli is also the author of the book, American Probate: Protecting the Public, Improving the Process (Northeastern University Press 2003), an intellectual history of the probate reform movement in the late twentieth century. Professor Monopoli is an elected member of the American Law Institute and she sits on the ALI's Consultative Committees for the Restatement Third of Property (Donative Transfers) and the Restatement Third of Trusts.

She is also an Academic Fellow of the American College of Trusts & Estates Counsel. Professor Monopoli has been a visiting professor at the George Washington University School of Law and she was the recipient of the 2004 Outstanding Professor of the Year Award at the School of Law.† In 2003, she founded the Women, Leadership & Equality Program at the School of Law. The program conducts research and offers an innovative curriculum that explores gender disparities in the legal profession. Professor Monopoli also developed the School of Law's new Leadership, Ethics and Democracy (LEAD) Initiative's curriculum for law students.



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500 W. Baltimore Street, Baltimore, MD 21201-1786 PHONE: (410) 706-7214 FAX: (410) 706-4045 / TDD: (410) 706-7714

Copyright © 2014, University of Maryland Francis King Carey School of Law. All Rights Reserved