Sunday, October 12, 2014

More on legal reasoning

Andrew Koppelman at Balkin
My paper, Did the Law Professors Blow It in the Health Care Case?, has now been published in the new issue of the Illinois Law Review, along with other responses to David Hyman’s paper, Why Did Law Professors Misunderestimate the Lawsuits Against the PPACA? [link - se] There is also a response by Prof. Hyman.

In his article, Professor Hyman criticized “the epic failure of law professors to accurately predict how Article III judges would handle the case.” The culprit, he concludes, was the experts’ insularity and arrogance. My essay offers a different explanation for the professors’ surprise at the seriousness with which the challenge was taken. The oral argument caused great consternation precisely because judges who had previously endorsed a broad view of Congressional power now suddenly abandoned principles that had been unquestioned for decades, and embraced limits that they had never before even mentioned and that made no sense as a matter of either constitutional interpretation or political philosophy. The explanation for the near-success of the challenge was a combination of libertarian prepossessions and pure Republican party loyalty. The essay concludes that because such behavior is so far outside the bounds of normal, responsible judicial action, the law professors did not anticipate it.

Hyman, you won't be shocked to learn, is unpersuaded.
High politics in law: following Balkin, or both following the same tradition [Taruskin-and here] In terms of blogging also for both of us going back to the beginning

Larry Solum v Balkin
[T]he distinction between high politics and low politics .... [is a] conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics.

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