Saturday, May 31, 2014

The health care case, again: Koppelman on Dorf on Koppelman

Andrew Koppelman

Michael Dorf’s generous review in the Texas Law Review of my book, The Tough Luck Constitution and the Assault on Health Care Reform, agrees with me that what I call “Tough Luck Libertarianism” - the idea that if you get sick and can’t pay for it, the state has no right to help you - played a large role in the Court’s decision in the health care case.  Dorf however thinks I haven’t given enough weight to two other factors:  federalism and “nonpartisan framing” – the presentation of partisan arguments in nonpartisan legal terms.  When these are taken into account, the constitutional challenge no longer seems to him as frivolous as he once thought (and I still think) it to be.

The law review has now published my response to the article, here.  In it, I agree with Dorf that it’s important to consider, as sympathetically as you can, arguments with which you don’t agree.  But there are dangers.  Dorf’s generous spirit has led him to expand, really to explode, the bounds of the frivolous.

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