We are grateful to Professor Ilya Somin of George Mason University for picking up our blog of January 9, 2008, entitled Jeffrey Toobin, the Eminent Domain Maven, Speaks, and discussing it on the popular Volokh Conspiracy legal blog. Prof. Somin’s entire post follows as are the Volokh Conspiracy’s readers’ comments.
Jeffrey Toobin on Kelo: Gideon Kanner points out several factual errors in Jeffrey Toobin’s discussion of Kelo v. City of New London in The Nine, his much-discussed book about the Supreme Court. Kanner is certainly right to take Toobin to task for his claims that, prior to the Supreme Court’s issuing its decision, the case “drew relatively little attention” and “hardly seemed like the stuff of high drama.” In reality, the case had already attracted extensive press coverage and dozens of amicus briefs. Toobin is even more wrong to attribute the immense public backlash against Kelo solely (or even primarily) to the machinations of “the conservative movement.” As I note in this paper, Ralph Nader, DNC Chair Howard Dean, Bill Clinton, and liberal Democratic Rep. Maxine Waters were among those who quickly denounced Kelo when it came down. The NAACP, AARP, Hispanic Alliance of Atlantic County, and the Southern Christian Leadership Conference filed a joint amicus brief in the case supporting the property owners. I myself wrote an amicus brief supporting the property owners on behalf of the late Jane Jacobs, the famous generally left of center urban development theorist. None of the above are even remotely associated with “the conservative movement.” Nor is it likely that they took the positions they did because nefarious conservatives somehow duped them into it. It is unfortunate that one of the nation’s most prominent legal journalists would make such basic errors about one of the most controversial and widely debated Supreme Court cases of the last 35 years. Eugene Volokh previously pointed out other factual errors in Toobin’s book in a series of posts back in September. It is increasingly clear that Toobin’s much-praised book is often unreliable.
Update: Will miracles never cease? Jeffrey Toobin has written to the Volokh Conspiracy, saying that he had learned from the commentators’ exchanges in their posts, and that he will make changes in the paperback edition of his book. So stay tuned, cross your fingers and hope for the best.