Wisconsin Law Review, Vol. 2009
36 Pages Posted: 5 Feb 2009 Last revised: 7 May 2009
Date Written: November 14, 2008
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.
Keywords: ERISA, pensions, health care, benefits
Suggested Citation: Suggested Citation
Maher, Brendan S., Creating a Paternalistic Market for Legal Rules Affecting the Benefit Promise (November 14, 2008). Wisconsin Law Review, Vol. 2009. Available at SSRN: https://ssrn.com/abstract=1337735