The Affordable Care Act, remedy, and litigation reform.

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 a question largely unexamined by scholars. Courts everywhere, including the U.S. 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. Ultimately, it considers whether the ACA-which incorporates, modifies, and rejects ERISA in several notable ways-will experience a similar fate.INTRODUCTIONTort reform is a loaded term. Reform, after all, is multi-directional: it can make rules more or less friendly to plaintiffs. For practical purposes, however, tort reform aims to alter legal rules so that plaintiffs have a harder time getting to court, winning, or collecting damages. Tort reform's larger but equally loaded cousin, litigation reform, is simply reform applied to all claims, not just tort.1For a long time, tort reform got most of the press.2 Recently, however, litigation reform has crept onto front and opinion pages.3 News tracks power, and the current Supreme Court is more solicitous of litigation reform-and more willing to act on that preference- than any Court in living memory. Since John G. Roberts, Jr. became Chief Justice in 2005, the Court has issued landmark decisions regarding pleading, arbitration, and class actions that have significantly curtailed plaintiffs' abilities to bring and win lawsuits.4 Whether that is desirable, disastrous, or somewhere in between depends on your point of view.Litigation reform is particularly relevant to health care legislation. Health insurance is a contentious matter, in both the grand and petty sense. Policy intuitions differ fiercely, and there are frequent coverage disputes. Unsurprisingly, the appropriate remedy for the wrongful denial of a health insurance claim has long been a subject of intense interest for litigation reformers and their opponents.5 Overly expansive remedies are decried as wasting money on the litigious; overly restrictive remedies are attacked as saving money on the backs of the sick. These policy quarrels are complicated by questions of statutory authority, namely, whether federal or state regulators get to decide the rules of remedy. Further, the collective amount of money at stake is enormous.Enter the Patient Protection and Affordable Care Act of 20106 (ACA). The ACA unquestionably rewrote the law of private health insurance in America. Whether and how it rewrote the law of civil remedies, however, is an important-and, to date, completely unconsidered-question of statutory federalism. This Article offers a foundation for the 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. And it explains how judicial construction of the statute's functional predecessor, the Employee Retirement Income Security Act of 19747 (ERISA), converted a protective statute into a uniquely effective piece of federal litigation reform. Ultimately, it considers whether the ACA-which incorporates, modifies, and rejects ERISA in several notable ways-will experience a similar fate.Part I supplies essential background by explaining the pre-ACA world. Prior to 2010, the most important statute regarding health insurance remedy was ERISA, which governs "benefit plan" arrangements incident to employment, including employment-based health insurance. This Part explains how ERISA's rules on coverage denial claims heavily favor insurers over claimants. …