The Affordable Care Act, Remedy, and Litigation Reform

74 Pages Posted: 20 Oct 2013 Last revised: 29 Oct 2013

See all articles by Brendan S. Maher

Brendan S. Maher

Texas A&M University School of Law

Date Written: October 1, 2013


The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue.

This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the Employee Retirement Income Security Act of 1974 (“ERISA”), converted a protective statute into a uniquely effective piece of federal litigation reform. And, ultimately, it considers whether the ACA — which incorporates, modifies, and rejects ERISA in several notable ways — will experience a similar fate.

Keywords: Affordable Care Act, litigation reform, remedy, ERISA, insurance

Suggested Citation

Maher, Brendan S., The Affordable Care Act, Remedy, and Litigation Reform (October 1, 2013). American University Law Review, Forthcoming, Available at SSRN:

Brendan S. Maher (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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