Jason Mazzone (University of Illinois College of Law) has posted Obamacare and Problems of Legal Scholarship (University of Illinois Law Review, Vol. 2014, No. 4, 2014) on SSRN. Here is the abstract:
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.
Highly Recommended!
My own view is that academic myopia regarding the Affordable Care Act case was in large part a function of the failure of legal scholars to recognize a constituitonal gestalt shift, with almost all legal scholars viewing NFIB v. Sebelius from the perspective of a dynamic understanding of the New Deal Settlement (federal legislative power is plenary, virtually unlimited, and constitutional limits adjust to accomodate new programs). In the Commerce Clause portion of Justice Roberts's opinion and in the Joint Dissent, the issues were view from an alternative perspective that understands the New Deal Settlement as frozen and endorses the use of categorical limits to prevent further expansion of national legislative power. This perspective is articulated in How NFIB v. Sebelius Affects the Constitutional Gestalt.