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.


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