How could lawprofs have gotten the ACA case so wrong?

Again and again, as legal challenges to ObamaCare made their way forward, leading law professors dismissed as frivolous or inconsequential arguments that wound up convincing many or most Justices on the Supreme Court. David Hyman via Stephen Bainbridge:

Almost without exception, law professors dismissed the possibility that 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.

Related: NYU Prof. Jonathan Haidt, who has written powerfully about the lack of ideological diversity in academia, has this page of resources on the subject. And don’t forget my book Schools for Misrule.

More: Nick Rosenkranz at Volokh back in April.


  • Answer: Blinded by a Progressive / Liberal ideology that tolerates no dissenters from dogma. ACA dogma was laid down by the Messiah Barackus Obamus and they had no choice but to fall in line.

  • Given that only idiots would stake their reputations on predictions that might turn out wrong, and that it is impossible to predict what an idiot would do, I have drawn my conclusions without Mr. Hyman’s doubtless invaluable insights.


  • I don’t think it was just law professors who missed that one.

    We could also talk about the number of geniuses on Wall Street who missed the sub prime debt crisis. It was so unbelievably obvious I don’t know how those idiots missed it, right? Or is it just that everyone looks dumb in hindsight?

    Actually, you know, there are people who saw the sub prime bomb exploding. Yet many of those that showed this great foresight have had very weak track records ever since. What does this tell us?

  • “Given that only idiots would stake their reputations on predictions that might turn out wrong”
    That hasn’t seemed to hurt any of the Gang of 88, so why should law profs worry? Problems only seem to arise for academics if they stray from progressive orthodoxy and attempt independent thought. But, what is worth advanced education if it does not to teach conformity?

  • Elite law schools have been ruled for years by political correctness every bit as virulent as the McCarthyism of the late 1940s and early 1950s. It is nearly impossible for a conservative, a southerner or a practicing Christian to get a job as a professor at any of the leading law schools. 100% adherence to the Left’s agenda (pro- gay marriage, Pro-ERA, anti death penalty, etc.) is a condition of employment. Ironically, the same is demanded in Hollywood and the entertainment industry; I challenge you to name a single Southern Christian conservative in a position of influence (programming director, studio executive, senior editor network VP or higher) in Hollywood or at ABC, NBC or CBS.

  • Law professors study precedents, they do not study the Constitution. And like an exercise given to children in school to whisper a sentence to the student behind them, they are surprised that the beginning sentence and the last sentence whispered are nowhere close to resembling each other.

  • An explanation of the cost structure of the ACA, for those who are interested. Good luck.

  • Ron Miller,

    “Actually, you know, there are people who saw the sub prime bomb exploding. Yet many of those that showed this great foresight have had very weak track records ever since. What does this tell us?”

    Even a broken clock is right twice a day.

    People who constantly predict doom will occasionally be right even if their method is nonsense.

  • There do not seem to be very many on-line analyses which go beyond pointing a finger at one political party or another (e.g., “it was George W. Bush’s fault”)… nearest I can come up with on my own is that it was the combination of the enthusiastic enforcement of the Community Reinvestment Act, and Glass-Steagull (spelling?) legislation, in combination, that enabled the conditions leading to the sub prime collapse.
    Any takers?

  • Realism explains it better than precedent or anything else. The modern Supreme Court tends to give a mostly free hand to the elected branches, but in almost every instance reserves some outer limit to preserve the pretense of limitation. So it upholds some action or law but draws a further line that cannot be crossed (most of the non-delegation cases show this trend pretty clearly). Or, more rarely, it strikes down a law but draws a line that would allow a more limited law to skate by (Morrison/Lopez, or free speech cases).

    The Court avoids giving up all power to limit the elected branches even when it declines to use that power and also declines to invalidate all future acts even when invalidating specific acts. Thus preserving flexibility for future decisions. There was no visible outer bound on the Commerce Clause as envisioned by Verrilli/Obama so some of the Justices balked and Roberts struck it down under the Commerce Clause. He messed up by opening up the taxing power rationale, which is terribly muddy and much less thoroughly briefed, but he was trying to avoid a confrontation today while preserving the right to object later, which is the basic institutional goal of SCOTUS.

    In my experience, most law professors weren’t terribly big fans of realism or this kind of application of public choice theory to the courts. It reduces the centrality of all their talk of theory and ideology and precedent, and it diminishes the judiciary to policymakers, partisans, or sinecures. Most of my 1L professors (excluding Crim and writing) included sizable chunks of the syllabus to some portion of law & econ: contracts, torts, property, conlaw, trusts, and tax. The latter three repeated public choice arguments (especially trusts and tax) but all of them except the trusts professor hedged against a thoroughgoing public choice theory. They wanted arguments that could be justified on a theoretical basis, some sort of semi-coherent code. They aren’t entirely wrong (e.g. the Treasury can be swayed in tax rulings by precedent and analogy) but public choice could explain a lot of these variations (e.g. the Treasury needs to follow precedent cynically sometimes to increase its legitimacy later, or the Treasury relents to apparently pro-taxpayer decisions based on managing their own paperwork burdens).

  • Mike, that’s beyond my pay grade. But it certainly was a bunch of things happening at the same time. Prosperity devours itself, someone smart said.

    My point was that all of the sign were there in HINDSIGHT. The people that missed the crash are crazy smart. They just missed it because it is so much easier to solve any math problem when you have the answer in the back of the book.