I love David Hyman's new essay Why Did Law Professors Misunderestimate the Lawsuits against PPACA? It starts off with a bang:
Law professors love hypothetical questions. So, let’s try a few. What if, in the highest profile case to hit the Supreme Court in the last generation on an issue of central importance to the scope of federal power, virtually every constitutional law scholar was wrong about how the Court would decide the case? And not just a little wrong, but “not remotely in the ballpark” wrong (i.e., declaring that an argument the other way was “frivolous, and deserving of sanctions”)? Worse still, what if when it first became apparent that they might be wrong, what if these law professors threatened that the Supreme Court would lose its legitimacy if it decided the case the “wrong” way? And, when it finally became irrefutable that these scholars were completely wrong, what if they did not do what any rational person would do (apologize, and try to figure out how and why they got it so wrong), but instead condemned the Supreme Court for failing to adhere to their view of what the law required? Finally, what if this behavior was not limited to law professors who actually do constitutional law? What if law professors with no obvious expertise in constitutional law signed petitions and made public statements declaring that the arguments of those challenging the constitutionality of PPACA were frivolous?
Of course, these are not hypothetical questions, but instead reflect the performance of the nation’s law professors before, during, and after the Supreme Court resolved the constitutional challenges to the Patient Protection and Affordable Care Act (“PPACA”).
With those few well chosen lines Hyman just bitch slapped virtually the entire constitutional law professoriate and a wide swath of the rest of our colleagues. And it gets better:
- "The status consciousness and narcissism of our nation’s law professors was also on full display. "
- "For those who are keeping track at home, this means that law professors effectively blew the call on all three of the issues at stake, at every stage of the proceedings."
- "What was the response of law professors to this highly salient signal of their failure to predict how the Supreme Court would handle the dispute? Instead of dining on humble pie, the routine response was rationalization – focusing on why the law professors had it right, and the Supreme Court was wrong."
Hyman goes on to offer several explanations for this widespread failure:
1. Law Professors Have Insufficient Practical Experience
This gives too much aid and comfort to the law school is a scam crowd. The problem is now whether law professors have practice experience, but whether the disconnect between what Hyman calls "the scholarly and academic concerns of most law professors and the concerns of judges and the practicing bar." A law professor with a couple of years of practice experience who makes the effort to engage judges and practitioners in various fora is going to be able to predict their decisions just as well as a twenty-year practitioner. (Indeed, one wonders whether constitutional law practitioners did a better job of predicting the SCOTUS's holding than did the law professors).
2. Motivated Reasoning in an Echo Chamber
Did constitutional law professors have a strong emotional stake in the outcome of the litigation over PPACA, sufficient to trigger motivated reasoning on the part of those opining? There is good reason to think so. The law represented the signature domestic policy achievement of the Obama Administration – and the culmination of decades of effort by the Democratic party. Previous research has demonstrated that law professors skew heavily Democratic, with massive under- representation of Republicans, conservatives, and evangelical or fundamentalist Christians.
This strikes me as the root cause of the problem. There is a stunning lack of intellectual diversity on law school faculties, especially on the public law side where the con law types reside. The range of political views among most constitutional law faculties starts at about, say, the level of Barbara Boxer and runs to the left from there. As such, it's hardly surprising that groupthink produced a left-of-center consensus unable to even consider the possibility that the challenges to the law might make sense.
3. The Problem with Life is the Personnel
Law professors are not known for their modesty. But even among this group, those who teach and write about constitutional law stand out.
4. The Law of Small Numbers
5. Making the Weather/The Pursuit of Politics By Other Means
The preceding factors may help explain how constitutional law professors got it so wrong prior to oral argument before the Supreme Court. But, what explains their conduct after oral argument, when it became clear that the constitutionality of PPACA was in serious jeopardy? ...
... For constitutional law professors, already inclined to view the Supreme Court as both a political and legal institution, and, as a group, generally committed to an expansive view of federal power, such measures were perfectly reasonable. This was an explicitly bare-knuckles political campaign, waged by a group of law professors convinced that they were right and the Supreme Court was about to be wrong. By pursuing politics through other means, the campaign was effectively a declaration of war on those who did not share the academic consensus on the scope of federal power.
To summarize, our nation’s elite law professors organized the academic equivalent of a vigilance committee to enforce what they had defined for themselves as the range of acceptable, mainstream views when it came to the Constitution – just as they had done several decades previously when Robert Bork was nominated to the Supreme Court. The erroneous predictions might be dismissed as an attempt to “make the weather,” but the de-legitimization campaign was something else altogether. And, the perception that these tactics are effective ensures we will see similar campaigns in the future.
This is a very important point. Hyman reveals here that the lack of intellectual diversity is not just a problem for law students, who get a twisted view of law and policy, but a social problem. If the legal academy is dominated by liberal hacks (and it is), courts and society get a one-sided analysis by purported experts who bring to the table not an analysis based on neutral principles but one based on personal policy preferences. Hence, I find my self in complete agreement with Hyman's conclusion:
... perhaps we need some new constitutional law professors, with a wider distribution of viewpoints than the orthodoxy that currently prevails. Legal academics routinely wax poetic about the virtues of diversity, but it is viewpoint diversity that maps onto the claimed virtues – and it is precisely on viewpoint diversity grounds that the legal academy in general, and the nation’s constitutional law professors in particular, fall abysmally short. Maybe constitutional law professors should adopt an affirmative action program for foxes, instead of slavishly replicating their hedgehog-based culture.