I have been blogging long enough that I can bore people by pontificating about how blogging was easier back in the old days. It’s actually true though, to some extent, at least with regard to my blog, and that’s because when I first started blogging, Paul Secunda, at the Workplace Prof blog, was still posting regularly on scholarly and legal developments concerning ERISA. He has stepped back from doing that over the past couple of years, leaving me with one less source of ready made analysis and commentary to mine.

Paul has stepped back into the salt mines, though, with this interesting post on the Third Circuit’s recent consideration of conflicts of interest under the MetLfe v. Glenn rubric. On some levels, I agree with Paul’s comment in his post that he doubts the new regime ushered in by Glenn will change the outcome of many denied benefit cases, only I agree with him from the opposite perspective: it was always my opinion that, in the courtroom, the evidence typically pointed the way to the right result regardless of the existence or non-existence of what has come to be known as a structural conflict of interest on the part of the decision maker. As I wrote in many posts back in the era when different circuits had different approaches to this issue, leading eventually to the Glenn ruling, it was more often than not my experience that the administrative record in a given case could tell you whether the decision was improperly influenced by outside factors – i.e., anything other than the facts of the participant’s claim – and thus there was generally no evidentiary reason to care one way or the other whether the decision maker, independent from what the administrative record itself showed, was acting with a conflict.

What is interesting to me at this point about this topic is that we are probably far enough along into the post-Glenn world that an academic could sit down with pre- and post-Glenn denied benefit decisions from the courts and analyze, in a statistically accurate manner, whether the Glenn rules have had a measurable impact on the outcome of these types of case. How about it, Paul? Time to bring the law and statistics movement to bear on ERISA questions?