Constitutional Prognostication: Does Anybody Knows Anything?

Every client knows that his case is a winner, but practicing lawyers know better. Indeed, practicing lawyers are extremely reluctant to make predictions about how a case will come out—and when forced to do so, they will invariably reference the hazards and uncertainties of litigation, and hedge any predictions they make. When it came to the legal challenges against the Patient Protection and Affordable Care Act (“PPACA”), law professors who teach and write about constitutional law at elite schools were far less circumspect. Indeed, they seemingly competed with one another to demonstrate how confident they were that the federal courts would reject the legal challenges to PPACA in their entirety. How did these confident predictions fare when the cases were actually tried? Not all that well—if by “not all that well” we mean “the complete repudiation of everything that elite law professors believed and espoused.” The University of Illinois Law Review has now published five responses to my article, by Professors Blackman, Blumstein,Koppelman, Mazzone, and Ramseyer. In this short Essay, I summarize each of these responses, and offer a short reply, organized around two P’s (Predictions and Practical Knowledge), and one M (Merits).

The full text of this Article is available to download as a PDF.