Oliver Wendell Homes Jr., forefather of judicial restraint, famously interrupted a lawyer pleading for justice before the Supreme Court, reminding counsel that he was seeking relief before a court of law, not a court of justice.
Justice Holmes' tenure on the bench ended well before Congress enacted ERISA in 1974. Since then ERISA cases have routinely found their way before the Supreme Court, proving Congress' ability to write laws that are clear, except when they are not. Searching for trends in past rulings to predict how the high court may now interpret ERISA is an exercise in shoveling smoke, and a temptation Thomas Clark strongly recommends against.
In a former life Clark was an associate at Schlichter, Bogard and Denton, a St. Louis boutique labor law firm at the forefront of a raft of class action ERISA litigation that has either been settled or is now groping its way through the appellate process. After half a decade in the weeds of some of the most contentious ERISA litigation of this era, Clark left the courtroom for FRA PlanTools, a web-based provider of fiduciary risk management solutions, where he counsels plan sponsors and administrators hoping to avoid the crosshairs he once trained on noncompliant fiduciaries.
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