Almost without exception, law professors dismissed the possibility that the Patient Protection and Affordable Care 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 3 judges would approach the case? This essay identifies three distinct but complementary factors that might help explain the observed failure. First, instead of conducting a neutral assessment of the actual probabilities, law professors engaged in motivated reasoning, based on their preexisting political and policy preferences. Second, the psychology of constitutional law professors led them to massively overstate the probability of success and suppress any misgivings or cautious hedging. Third, once it became clear that the PPACA was in serious jeopardy, our nation's law professors decided to pursue politics by other means, and organized the academic equivalent of a vigilance committee.
David A. Hyman; Something Went Wrong on the Way to the Courthouse. J Health Polit Policy Law 1 April 2013; 38 (2): 243–253. doi: https://doi.org/10.1215/03616878-1966234
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