The opinion is rife with instruction on what a court should not do.

In the final analysis, the Court seems to advance a gestalt reasonableness standard (a “combination-of-factors method of review,” the opinion calls it, by which a reviewing court, mindful of being deferential, should nonetheless consider all the circumstances, weigh them as it thinks best, then divine whether a fiduciary’s discretionary decision should be overturned.

Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (U.S. 2008), Justice Scalia, dissenting.

Justice Scalia notes that the majority opinion in MetLife gives us substantial instruction on what a court should not do. To his point, one can find the Court saying much about what it is not doing and what should not be inferred from its decision.

For example:

#1 The decision does not change the standard of review.

We do not believe that Firestone’s statement implies a change in the standard of review, say, from deferential to de novo review.

#2 The decision does not itself imply a rule that would entail large scale de novo review.

Nor would we overturn Firestone by adopting a rule that in practice could bring about near universal review by judges de novo — i.e., without deference — of the lion’s share of ERISA plan claims denials.

#3 The decision does not create or encourage special burden of proof rules. (see quotation at #5 below)

#4 The decision does not create or encourage special procedural rules.

#5 The decision does not create or encourage special evidentiary rules.

Neither do we believe it necessary or desirable for courts to create special burden-of-proof rules, or other special procedural or evidentiary rules, focused narrowly upon the evaluator/payor conflict.

#6 The decision does not weight any one factor for a reviewing judge to take into account.

In principle, as we have said, conflicts are but one factor among many that a reviewing judge must take into account.

#7 The decision does not propose or encourage a uniform procedural system.

Benefits decisions arise in too many contexts, concern too many circumstances, and can relate in too many different ways to conflicts — which themselves vary in kind and in degree of seriousness — for us to come up with a one-size-fits-all procedural system that is likely to promote fair and accurate review.

#8 The decision does not require that conflict of interest be given any weight.

[A conflict of interest] should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances, or by imposing management checks that penalize inaccurate decisionmaking irrespective of whom the inaccuracy benefits.

#9 The decision does not explain how a reviewing court should permit or require interrogation of facts asserted beyond the “administrative” record.

#10 The decision does not purport to provide “a detailed set of instructions.”

Note: Justice Stephen G. Breyer, author of the majority opinion, was once described as “a judge of moderate leanings, a self-described pragmatist interested more in solutions than in theories.” See, THE SUPREME COURT: NEWS ANALYSIS Portrait of a Pragmatist; Confirmation Hearing for Breyer Elicits His Emphasis on Rulings’ Lasting Effects (July 14, 1994). Interestingly, Felix Frankfurter, author of the opinion inUniversal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951), cited by Justice Breyer in his MetLife opinion, is also described as a pragmatist by Richard Posner (who flies the pragmatist banner as well) in “Pragmatic Adjudication” (essay appearing in The Revival of Pragmatism: New Essays on Social Thought, Law, and Culture: Duke University Press (1998)).

Without inferring too much from these observations, it is nonetheless interesting to note what Posner claims for legal pragmatism – and ask whether it has much to offer as a theory of judicial adjudication (as he purports that it does).

Posner (as you probably know, a sitting judge on the Seventh Circuit Court of Appeals) advocates pragmatic jurisprudence, describing it as “a rejection of the idea that law is something grounded in permanent principle and realized in logical manipulation of those principles, and a determination to use law as an instrument for social ends.” (Posner, Overcoming Law: Harvard University Press (1995), p. 405). As we look at the disputes presented in the arena of benefit claims and denials through the murky lens held up in Breyer’s MetLife opinion, we have reason to ask if legal pragmatism really is as workable as its adherents claim.

Postscript – Trivia point – Firestone has been cited 5965 times as of this date per Shepard’s