Thursday, January 30, 2014

Did the law professors blow it?

Andrew Koppelman

David Hyman’s paper, Why Did Law Professors Misunderestimate the Lawsuits Against the PPACA?, reflects on what he calls "the epic failure of law professors to accurately predict how Article III judges would handle the case." The culprit, he concludes, was the experts’ insularity and arrogance. (I’m one of his named targets.)

The paper is forthcoming in the Illinois Law Review, which solicited a group of responses.  My response is now posted on SSRN, here.

I offer a different explanation for the professors’ surprise at the seriousness with which the challenge was taken. The oral argument caused great consternation precisely because judges who had previously endorsed a broad view of Congressional power now suddenly abandoned principles that had been unquestioned for decades, and embraced limits that they had never before even mentioned and that made no sense as a matter of either constitutional interpretation or political philosophy. The explanation for the near-success of the challenge was a combination of libertarian prepossessions and pure Republican party loyalty. Because such behavior is so far outside the bounds of normal, responsible judicial action, the law professors did not anticipate it.

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