Obamacare is a classic example of the new model in action. A lawsuit against the constitutionality of the ‘individual mandate’ (a requirement that individuals purchase health insurance or pay a fine) was not taken seriously by politicians or much of the legal academy when it was first mooted in a Wall Street Journal op-ed by Lee Casey and David Rivkin Jr.Yet in a sustained series of posts on the Volokh Conspiracy blog – which brings together libertarian and conservative legal academics – contributors honed arguments against the mandate’s constitutionality. Randy Barnett led the merry gang, which also included Ilya Somin, David Kopel and Jonathan Adler. Their arguments prompted strong rebuttals, from one of their fellow conspirators, Orin Kerr, and from legal academics from opposing camps, such as the liberal, Jack Balkin. Commenters, from across the world and political spectrum, also weighed in. In the heat of battle, the arguments against the constitutionality of the mandate grew stronger.The case made it to the Supreme Court in the wake of several lower-court decisions concluding that the mandate was neither a valid exercise of Congress’s enumerated power to regulate interstate commerce nor of its authority to adopt ancillary measures that are necessary and proper to further its enumerated powers. Lower courts were not unanimous. Neither was the Supreme Court. But a majority held that the individual mandate was unconstitutional.
And he also gives credit to the possible influence of an academic paper posted on SSRN on Chief Justice Roberts’s opinion:
Notoriously, although he agreed with the arguments developed in cyberspace about the scope of the commerce clause, Chief Justice Roberts voted to uphold the individual mandate as a valid exercise of Congress’s power to tax and spend for the general welfare. His opinion bore a remarkable similarity to an academic paper posted to SSRN by Robert Cooter and Neil Siegel, “Not the Power to Destroy: An Effects Theory of the Tax Power,” which had been downloaded 162 times at the time of the decision.
There is one thought I would add to Professor Daly’s insightful observations that he might want to integrate into his flow charts. The best academic blogging consists of professors who are blogging about subjects within their scholarly expertise. In this way, Legal Academia 1.0 is related to Legal Academia 2.0.
Short form blogging that is based on the essence of long-form scholarship is completely different than opinion blogging, whether the opinion blogging is by an academic or nonacademic. Of course, it is challenging to blog in a way that is consistent with one’s long-form scholarship. But it is entirely possible to do so and is something I urge young scholars to try (after tenure). And I also have found that blogging has improved my academic writing as well. With some effort, even Tweeting can be informed by and consistent with one’s more complex academic expertise.
I believe this is why academic blogs — such as ours, Balkanization, or the Originalism Blog — that are an extension of the academic expertise of those who blog there, are worth reading for reasons other than the pleasures one gets from reading pure opinion blogging. And I think this is why we have the readership we have.
At any rate, download and read the whole thing. It could have made a nice series of blog posts.