On SSRN there is an intriguing short (10 page) essay by law professor Paul Daly of the University of Montreal on New and Old Models of Academic Engagement and Influence. Here is the abstract:
Across the country, legal and political aficionados hunched over their keyboards waiting for the announcement. Some were genuinely surprised by the decision. The leader of the country had staked a great deal of political capital on a legal argument that was rejected by a majority of the Supreme Court. It was a decision that rocked the legal establishment and forced a rethink of the fundamentals of constitutional law. And yet, for those in the know, the decision was not a surprise at all. Serious flaws in the government’s legal arguments had been flagged long ago. A key aspect of the reasoning was drawn from an academic article posted in an online database. For those who had followed the case on blogs and social media, the decision was predictable, though no less monumental for that.
I am writing, of course, about National Federation of Businesses v. Sebelius, the case in which the Supreme Court of the United States upheld President Obama’s landmark healthcare reform against a constitutional challenge. But I could have been writing about Reference re Supreme Court Act, ss. 5 and 6, the case in which the Supreme Court of Canada concluded that Marc Nadon, Prime Minister Harper’s nominee to fill its vacant seat, was ineligible. Both the Obamacare case and l’affaire Nadon have much in common. Apart from their political importance, they both highlight the new means that legal academics can use to engage with the wider community.
In this short essay, prepared for a symposium on l’affaire Nadon I will contrast the old and new models of academic engagement, by particular reference to Obamacare and l’affaire Nadon. The lessons are straightforward. Whether concerned to increase their influence or mindful of the need to check it, academics should pay attention to the online world. The same goes for other actors in the wider community: judges, law clerks, lawyers, litigants, journalists, politicians, political staffers, and lay people.
Professor Daly uses this blog as one of two examples to illustrate his thesis (citing our book A Conspiracy Against Obamacare):
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.