ERISA’s underdeveloped civil enforcement mechanism, section 502(a), has generated extensive litigation. Judicially crafted strictures on the relief available to participants have arisen with respect to standing, scope of judicial review, causes of action, and remedies. While the Supreme Court has held those with a colorable claim to benefits have standing, precisely what that means has proven elusive. Judicial review of denied claims is strictly constrained. Court access requires that participants have exhausted internal review processes, and if the plan grants the administrator discretion to determine eligibility for benefits or construe the plan’s terms (which is virtually always), judicial review is restricted to a cursory scan for abuse of discretion. Deferential review survives even if the administrator is conflicted: lower courts are instructed to consider the conflict merely as one factor in and overall assessment of whether discretion was abused. Finally, the Court has held that ERISA does not permit the full panoply of damages one would expect in the aftermath of contractual or fiduciary breach. Consequential damages are unavailable for denied claims, and equitable relief for fiduciary breach is limited to what was typically available in equity in the days of the divided bench.

Chapter 10 studies judicial review, widely known as administrative litigation in China, under the Administrative Litigation Law (ALL) (2017), which was first enacted in 1989. The command-and-control approach to pollution control grants wide-ranging powers to administrative agencies. They set standards, monitor performance and impose sanctions. Their acts or omissions directly determine the effectiveness of the environmental legal regime. Judicial review allows courts to check agency behavior to ensure good governance in pollution control and long-term sustainable development. While ALL (1989) has laid down the legal basis for injured parties to sue against unlawful agency acts or omissions, there have been tremendous obstacles for private parties to gain access to courts. The Law was amended in 2014 and 2017 to relax the statutory requirement on standing and expand the scope of judicial review. The chapter examines the issue of standing, the scope of judicial review, and judicial remedies. It concludes with discussion of the special challenges of administrative litigation in China.