Obamacare and Problems of Legal Scholarship
8 Pages Posted: 15 Oct 2014
Date Written: October 14, 2014
In a recent article in the Illinois Law Review, David Hyman explores why law professors failed to accurately predict the outcome of the Commerce Clause challenge to the Patient Protection and Affordable Care Act in the Supreme Court’s decision in NFIB v. Sebelius (2012). Professor Hyman's article (“Why did Law Professors Misunderestimate the Lawsuits against PPACA?") is important in its own right, but it also exposes broader problems in legal scholarship. Too often, legal scholars, particularly those working on constitutional issues, perform their work backwards: they set out with a conclusion in mind, then do the research to support that predetermined outcome. This distortion of the research process — a basic failure to distinguish between analysis and advocacy — is not necessarily intentional. Law professors often lack training in how to design a proper research methodology, and the different hats that law professors are forced to wear necessarily generate confusion. But the consequences of this distortion are real: law professors may lose their objectivity; they may lose sight of contradictory positions; and in the case of public predictions — like those on Obamacare — they may lose a good bit of face as well. My short essay, prepared as part of a symposium on Professor Hyman's article, examines the problems in legal scholarship that the Obamacare episode revealed and points to some needed reforms in the legal academy.
Keywords: Obamacare, legal scholarship, Patient Protection and Affordable Care Act, law professors, Commerce Clause, constitutional scholarship, advocacy, analysis
Suggested Citation: Suggested Citation