Legal Ethics

Were Law Profs Lying or Just Mistaken When They Said the Health Law Was Slam-Dunk Constitutional?


Oral arguments on the constitutionality of the health care law left some journalists with the impression that the U.S. Supreme Court’s liberal justices will have a difficult time getting a fifth vote.

The possibility is at odds with the views of many liberal law professors who appeared to “grossly miscalculate” the chances for challenges to the insurance requirement, George Mason University law professor Ilya Somin writes at the Volokh Conspiracy. Many professors deemed the suits silly and frivolous, even after four lower courts had struck down the mandate.

In a separate post, Somin discounts one possible reason offered at Concurring Opinions for the miscalculation: The commentators were trying to shape the narrative by displaying more confidence than they felt. According to Somin, “I believe that they meant what they said and said what they meant.”

Others aren’t so sure. One blogger even questioned the ethics of “strategic blogging” by legal academics. Writing at PrawfsBlawg, University of Alabama law professor Paul Horwitz says blogging professors should not sacrifice their reputations to influence debate. “Someone who writes that current law clearly means X should mean what he or she says; ‘shaping the narrative’ is no defense to asserting with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence,” Horwitz writes.

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