March 28, 2011

Brendan Maher Publishes Article Entitled The Benefits of Opt-in Federalism

Author: Brendan S. Maher

Title: The Benefits of Opt-in Federalism

Publication: Boston College Law Review

Date: March 28, 2011

Abstract: The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.

Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.

Suggested citation: Brendan S. Maher, The Benefits of Opt-in Federalism, 52 B.C. L. Rev. 1733 (2011), available at