Greg Sargent is one of many commentators wondering “How did legal observers and Obamacare backers get it so wrong?” I think he’s asking the wrong question. A better question to ask is: why did so many expect legal elites to have any particular insight into the current court? After all, many of the legal experts who were so dismissive of the arguments against the mandate were equally dismissive of the federalism arguments that prevailed in cases like United States v. Lopez, New York v. United States, and City of Boerne v. Flores. Many of the legal academics who ridiculed Randy Barnett’s work on the mandate, and who were relied upon by legal journalists and commentators, thought their schools were advancing viable legal claims in Rumsfeld v. FAIR. Oops. Premier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.
What explains this state of affairs? I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy. At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases. Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for what the law should be. Constitutional scholarship in particular is increasingly focused on theory and less on the law. In some corners, it’s more important to reconcile one’s claims with the writings of John Rawls than the opinions of John Roberts.
This divide explains why so many legal academics were dismissive of some of the concerns raised in this week’s oral arguments, such as the need for a limiting principle. The Solicitor General’s office has taken this concern seriously from day one, as have a few liberal legal academics (e.g. Neil Seigel, Michael Dorf whereas others, such as Andrew Koppelman, have been sneeringly dismissive of this argument from the get-go. Even if Koppelman were right as a matter of first principles, he’s clearly wrong as a matter of current doctrine as understood by the current Supreme Court, though you wouldn’t know it from what he’s written.
Read more: http://volokh.com/2012/03/30/why-did-legal-elites-underestimate-the-case-against-the-mandate/
What explains this state of affairs? I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy. At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases. Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for what the law should be. Constitutional scholarship in particular is increasingly focused on theory and less on the law. In some corners, it’s more important to reconcile one’s claims with the writings of John Rawls than the opinions of John Roberts.
This divide explains why so many legal academics were dismissive of some of the concerns raised in this week’s oral arguments, such as the need for a limiting principle. The Solicitor General’s office has taken this concern seriously from day one, as have a few liberal legal academics (e.g. Neil Seigel, Michael Dorf whereas others, such as Andrew Koppelman, have been sneeringly dismissive of this argument from the get-go. Even if Koppelman were right as a matter of first principles, he’s clearly wrong as a matter of current doctrine as understood by the current Supreme Court, though you wouldn’t know it from what he’s written.
Read more: http://volokh.com/2012/03/30/why-did-legal-elites-underestimate-the-case-against-the-mandate/
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