Amy B. Monahan (Minnesota) has posted On Subsidies and Mandates: A Regulatory Critique of ACA, 36 J. Corp. L. ___ (2011), on SSRN. Here is the abstract:

This symposium essay examines the two interrelated provisions in the Affordable Care Act that are designed to encourage individuals to purchase health insurance: the individual mandate and premium tax credits. It sets aside the constitutional issues raised by the mandate, and instead examines the regulatory structure and likely effect of the subsidies and individual mandate on health insurance purchasing decisions following full implementation of ACA. It compares subsidies and mandates under ACA to those passed as part of Massachusetts’ 2006 health care reform legislation, examining the differing policy choices that the two structures reflect. In particular, the essay analyzes the structures of the subsidies provided to low income individuals and how they differ with respect to the nature of the financial security they provide and the choices they allow individuals to make, and also analyzes the nature of the individual mandate penalties and the extent to which they function to encourage health insurance purchase among taxpayers of differing income levels.