“Why Did Law Professors Misunderestimate the Lawsuits against PPACA?”

April 17th, 2013

David Hyman has an interesting article that looks at five factors to help explain how so many law professors missed the boat in NFIB.

Here is the abstract.

Almost without exception, law professors dismissed the possibility that the Patient Protection and Affordable Act Act (“PPACA”) might be unconstitutional — but something went wrong on the way to the courthouse. What explains the epic failure of law professors to accurately predict how Article III judges would handle the case? After considering three possible defenses/justifications, this essay identifies five factors that help explain the erroneous predictions of our nation’s elite law professors, who were badly wrong, but never in doubt.

And here are the five factors:

  • Law Professors Have Insufficient Practical Experience
  • Motivated Reasoning in an Echo Chamber
  • The Problem with Life is the Personnel
  • The Law of Small Numbers
  • The Pursuit of Politics By Other Means

This is a very interesting article that highlights a point that Randy Barnett has been hitting for some time about why so many professors totally disregarded this challenge

I cover this dynamic at some length in my book, and talk about, in particular, how the “echo chamber” resonated at Yale Law School in particular.

BTW, I love the word misunderestimate. I think it was first prominently attributed to George W. Bush. Remember the Bushims?