Creating a Paternalistic Market for Legal Rules Affecting the Benefit Promise
Brendan S. Maher
Oklahoma City University School of Law
November 14, 2008
Wisconsin Law Review, Vol. 2009
Notwithstanding the fact that ERISA was enacted to protect employee benefits, courts have narrowly construed the relief available when benefits are denied, out of concern that a stronger remedy would be too costly for the system to bear. Judges, I argue, are ill-equipped to make this policy judgment. Instead, a regulated, subsidized, paternalistic market should be created to permit the benefit players themselves to choose and price the strength of the remedy they desire. This is a superior means to reach the right level of remedial strength for the most players. To protect against undesirably weak remedial options being selected, I propose the market should have a highly protective default remedial option, clear disclosure rules, subsidies, and a regulatory floor.
Number of Pages in PDF File: 36
Keywords: ERISA, pensions, health care, benefitsAccepted Paper Series
Date posted: February 5, 2009 ; Last revised: May 7, 2009
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