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Article
Creating a Paternalistic Market for Legal Rules Affecting the Benefit Promise
Wisconsin Law Review
  • Brendan S Maher
Document Type
Article
Publication Date
6-2009
ISSN
0043-650X
Abstract

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.

Num Pages
36
Publisher
University of Wisconsin Law School
File Type
PDF
Citation Information
Brendan S Maher. "Creating a Paternalistic Market for Legal Rules Affecting the Benefit Promise" Wisconsin Law Review Vol. 2009 Iss. 3 (2009) p. 658 - 692
Available at: http://works.bepress.com/brendan_maher/12/