I don’t know how many of you have had a chance to read, or have any interest in reading, the transcript of the argument yesterday in McCutchen, but its actually fairly entertaining. For one thing, it is clear that everyone – litigants, the justices, you name it – are a little flummoxed by the need to go back to “days of the divided bench” to figure out how to handle equitable relief claims under ERISA. The cases cited by the parties are, by definition, archaic, and do not perfectly fit the scenarios arising today. Further, as the argument makes clear, it puts way too much value on treatises, which often – particularly in the insurance context, such as the Couch treatise referenced in the argument – reflect the analysis and synthesis of the authors more than anything else. Questioning from the bench and discussion from the lawyers makes clear that everyone recognizes the effect all of this has on deciding cases. At least two justices, in fact, make what I take to be mocking references to the need to reason and decide as though it was centuries earlier, with Justice Breyer placing a hypothetical in the 15th century and another justice referencing the need to act as though it is the beginning of the 20th century.

This is no way to run a ballclub, pretending that we can figure out in 2012 what a judge, educated only on the legal principles and aware only of the factual scenarios that existed hundreds of years ago, would do with the complex fact patterns and contracts that arise out of a statute that wasn’t enacted until 1974. I have written elsewhere that I highly doubt that the statute’s drafters were deliberately and knowingly incorporating the 19th century into the statute, including when they drafted the remedial procedures. One has to ask then, in that circumstance, how it can make any sense to retreat to the 19th century to decide how to apply that statute. Wouldn’t it make more sense, as a matter of statutory construction and simple commonsense, to ask what equity rule would have applied in 1974 to decide an issue like this and then, if there was no rule governing it at that time, say so and then choose one based on all of the competing factors that the Court normally considers in deciding an open question involving statutory interpretation?