10 Pages Posted: 17 May 2014
Date Written: May 13, 2014
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.
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