In this New York Times article, prominent legal commentator Dahlia Lithwick reviewed journalist Jeff Benedict's recent book on the Kelo case, Little Pink House, which I discussed in detail in this post.
Lithwick chides Benedict for giving relatively short shrift to the legal issues in the case. As I pointed out in my own review, Benedict deliberately focused on the political and social background to the Kelo condemnations while leaving the technical legal issues to the army of scholars and pundits who had already written on them. Nonetheless, I also noted that Benedict did make a few errors in his discussion of legal points, for instance in suggesting that Kelo was a major departure from previous Supreme Court takings decisions.
Unfortunately, Lithwick fails to note any of Benedict's genuine errors. Instead, she incorrectly portrays Benedict as ignoring the argument that the majority justices were impartially applying the law, despite its possible unfair results - a claim that Benedict actually does discuss several times in the book. Worse, she makes several egregious legal errors of her own. For example, she writes that the Kelo decision was about "dispassionately applying state laws," whereas in reality the case addressed the Public Use Clause of the Fifth Amendment of the federal Constitution. As Lithwick surely realizes, the federal Supreme Court lacks jurisdiction over most pure state law issues.
Several other errors in Lithwick's review are catalogued in this post by eminent domain scholar Gideon Kanner.
UPDATE: Various commenters object to my description of Lithwick as a "prominent legal commentator," claiming that her work is too flawed to merit such an accolade. However, she undoubtedly is prominent in the sense of being well-known and widely read. The fact that Lithwick publishes in Slate and the New York Times, among other major outlets, is an indication of her prominence. Whether she deserves that prominence is a separate question.
Related Posts (on one page):
- Dahlia Lithwick Reviews Little Pink House - Jeff Benedict's book on Kelo v. City of New London:
- Telling the Kelo Story - Jeff Benedict's Little Pink House: