Karen A. Jordan


In recent years, courts have applied the Employee Retirement Income Security Act of 1974 ("ERISA ") to pre-empt an increasingly wide scope of state laws, with the effect of limiting remedies of plan participants and beneficiaries and frustrating state health care reform efforts. Professor Jordan argues that the recent Supreme Court decision in New York State Conference of Blue Cross & Blue Shield v. Travelers Insurance Co. is a signal from the Court that ERISA pre-emption should be applied more narrowly. She first analyzes the Court's prior pre-emption decisions and identifies delimiting language unheeded by lower courts. She then explores the impact of Travelers on ERISA preemption analysis, finding the decision renews emphasis on the historical presumption against pre-empting laws within state police power and takes a more pragmatic approach to discerning congressional intent regarding ERISA pre-emption. Finally, by examining certain emerging pre-emption issues, namely those involving provider taxes and contract and tort claims she assesses the effectiveness of the analytical framework derived from Travelers and prior Supreme Court cases in restraining the scope of ERISA pre-emption. Professor Jordan concludes that the framework can effectively restrain findings of preemption and should lead to more rational pre-emption decisions.

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