Here is a pretty good arguement on making sure you understand both sides of an arguement and not just discount one side because you and those you know donāt think that way:
Greg Sargent is one of many commentators wondering
āHow did legal observers and Obamacare backers get it so wrong?ā I think heās 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 Barnettās 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 ā 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 Courtās 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, itās more important to reconcile oneās 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 weekās oral arguments, such as the need for a limiting principle. The Solicitor Generalās 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, heās clearly wrong as a matter of current doctrine as understood by the current Supreme Court, though you wouldnāt know it from what heās written.
Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia. The current Supreme Court has a right-leaning majority, but legal academia leans decidedly to the left. On many faculties their are few, if any, professors with any particular appreciation or understanding (let alone sympathy) for the jurisprudential views of a majority of the current justices. This means that when ideas are floated in the faculty lounge, they may get a far more sympathetic hearing than they would ever receive in court. So, for instance, itās easy for Jack Balkin to
dismiss an argument premised on *Bailey v. Drexel *
Furniture because itās a *Lochner-*era decision, even though
Bailey remains good law. A practicing lawyer would have been less likely to make this mistake. Indeed, the SG actually cited
Bailey approvingly this week in his argument before the Court.
volokh.com/2012/03/30/why-did-legal-elites-underestimate-the-case-against-the-mandate/
Did I criticize Buckleyās show with an ad hominem attack on him? ā¦
Just like newspapers or news casts.