A primary function of legal scholarship is to incubate ideas to inform the bench and bar. Yet several Supreme Court Justices have recently spoken out publicly about what they consider the growing irrelevance of academic legal scholarship (though empirical findings suggest the continued utility of law reviews to judges). The legal academy sometimes entirely misses what turn out to be major and decisive legal issues in prominent areas, not recognizing them at an early stage and dismissing their importance later on. For example, the great majority of professors dismissed the notion that the Patient Protection and Affordable Care Act (Obamacare) could violate the Commerce Clause.
Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol89/iss4/6