Brian King has an interesting post over at his ERISA Law Blog, concerning my recent suggestion that the Supreme Court was poised to shift the currents of the river that is the law of ERISA. Brian’s take? Ain’t happening, although in truth Brian’s point is a little more subtle than that, and is that the Supreme Court certainly isn’t about to make any big changes in the law of ERISA in a way that will be of great help to claimants. I can’t say I disagree. I do suspect, however, that the Court is about to wade into these issues and begin addressing some of the technical points that are in dispute at the lower courts, in a way that will affect the general contours of the law of ERISA. I think the Court just did that on a more dramatic level with patent law, and is looking at ERISA cases with the same skeptical eye. There are subtle points affecting such topics as 401(k) plans and the application of the arbitrary and capricious standard to certain issues that I think the Court may be about to address. But a wholesale rewriting of precedent in a way that loosens up the whole kit and kaboodle in a manner that makes it dramatically easier to sue plans and administrators? Well, no.
But I will say that, as an aside, one of the great pleasures of blogging is exactly this type of opportunity to consider multiple viewpoints on the same issue in real time (rather than have to wait a few years for a law review to issue a special edition collecting pieces on both sides of an issue).