I quite enjoyed reading David Hyman’s new article of this title. It vividly illustrates a point that I tried to make three weeks ago at the Intellectual Diversity Conference at Harvard Law School (Panel 2 – 47:00) — which is that the liberal echo chamber of elite law schools has made them startlingly poor at predicting and analyzing what arguments will actually succeed in American courts. (See also Randy’s thoughtful discussion of this topic.) Hyman’s piece is exactly right, I think, and it is also breezily and stylishly written. 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.
Download Hyman’s article here.