Did the Law Professors Blow it in the Health Care Case?

7 Pages Posted: 30 Jan 2014

Date Written: January 18, 2014

Abstract

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.)

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.

Keywords: Health care reform, NFIB v. Sebelius

JEL Classification: K3, K30, K4, K40

Suggested Citation

Koppelman, Andrew M., Did the Law Professors Blow it in the Health Care Case? (January 18, 2014). University of Illinois Law Review, Forthcoming; Northwestern Public Law Research Paper No. 14-02. Available at SSRN: https://ssrn.com/abstract=2386968

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

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