Final Version of “Obamacare and Man at Yale” in Illinois Law Review

October 13th, 2014

My contribution to a symposium in the Illinois Law Review about how the academy “misunderestimated” the constitutional challenge to Obamacare is now final. You can download it here. Here is the abstract.

After the most significant Supreme Court oral argument of the Roberts Court, elite law professors were stuck sitting on the sidelines at the Hogwarts-esque castle that is Yale Law School, mystified how they were likely headed towards an unprecedented defeat. Rather than accepting the validity of the arguments against Obamacare, leading academics directed their ire towards the recalcitrant Solicitor General, who, unlike his predecessor, shunned academics, and put forth losing arguments in Court. Further, the professors blamed the media (the New York Times in particular), that gave a “false equivalence” to libertarian law professors, and made their arguments legitimate.

In writing Unprecedented: The Constitutional Challenge to Obamacare, I conducted over one-hundred interviews with the lawyers, journalists, professors, and politicos involved on both sides of the case. These insights shed light on the question Professor David Hyman seeks to answer in his important and timely new article: “Why Did Law Professors Misunderestimate the Lawsuits against PPACA?” For this contribution to a symposium in the Illinois Law Review, I highlight how the sentiments at this Ivy-League confab served as a fitting testament to the law professors’ “misunderestimation” of NFIB v. Sebelius.


The other pieces from David Hyman, Andy Koppelman, and others are here:

Issue 4 next presents 5 essays responding to Professor Hyman’s article “Why did Law Professors Misunderestimate the Lawsuits against PPACA?” Professors Ramseyer, Blackman, Blumstein, Mazzone, andKoppelman all contribute to this discussion on the Affordable Care Act. The final article, by Professor Hymanresponds to and summarizes the foregoing discussion.