PS on the ERISA post

The ERISA post is generating some very thoughtful comments. Because I try to respond to most comments, and because I have two generic responses, I will use this supplemental post in response.  Two things:

1. The substantive dispute about whether ERISA insurance companies are accorded deference, also highlights an important point about the role of federal trial judges. A very good argument exists that in the civil context there are no more federal trial judges. On the contrary, in a many civil law areas, federal judges have been told by the Supreme Court that trials are last resorts, to be avoided except in very narrow circumstances. Thus, the ERISA problem highlighted in the featured article ought, in the broader context, to be viewed as a continuation of the Supreme Court’s determination to eliminate civil trials whenever possible. Now, I can make a strong argument that this is a very good thing just as easily as I can make a strong argument that this is a very bad thing. From the larger policy perspective, however, we ought not get distracted by the intricacies of the particular substantive law we are discussing. In other words, for purposes of this blog, I am more interested in focusing upon judicial role and the policy implications of limited versus expansive roles for trial judges.

2. Any time the Supreme Court limits the role of federal trial judges, the federal trial judge’s life is easier. This has real world implications. To be clear, I do not mean to suggest that we are lazy, although a very few are. But, the Posners of the world would assert that for rational actors like trial judges “effort aversion” and “leisure preference” is a strong motivator of judicial behavior. If that is true, the Supreme Court’s “let’s limit civil trials” jurisprudence has power way beyond the strength or weakness of the Court’s substantive reasoning.


2 responses

  1. Rich, for the 8th Circuit Conference next year, I am slated to do a 1 hour CLE on the Supreme Court’s slew of arbitration cases. I’m almost worried that by then the Court will rule that if a contract doesn’t have an arbitration clause it was surely an oversight and the matter still has to go to arbitration, leaving me with about 1 minute of material. (Strom told me he tried a diversity auto accident case a couple of years ago, so maybe federal civil trials aren’t completely dead — which is nice.) However, being a law professor, I can make even the most mundane discussions drag on for an hour. I will expect you to attend and take copious notes. Best, Pat.

  2. Pat,

    As a general matter, one of the great things about being a senior judge is that it is OK to miss those things. But, since the conference is in Omaha next year, I must attend. I promise to take copious notes on your arbitration lecture. By the way, perhaps you should tell the attendees that arbitrators should henceforth be addressed as “Your Honors” since the Justices believe there is no difference.

    All the best.


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