Did the law professors blow it in the health care case?

Andrew M M Koppelman*

*Corresponding author for this work

Research output: Contribution to journalReview articlepeer-review

3 Scopus citations

Abstract

This Essay responds to David Hyman's paper, Why Did Law Professors Misunderestimate the Lawsuits Against the PPACA? In his article, Professor Hyman criticized "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. This Essay offers 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 nearsuccess of the challenge was a combination of libertarian prepossessions and pure Republican party loyalty. This Essay concludes that because such behavior is so far outside the bounds of normal, responsible judicial action, the law professors did not anticipate it.

Original languageEnglish (US)
Pages (from-to)1273-1278
Number of pages6
JournalUniversity of Illinois Law Review
Volume2014
Issue number4
StatePublished - Jan 1 2014

ASJC Scopus subject areas

  • Law

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