In the New Rambler, Cornell Law School Dean Eduardo Peñalver reviews Ilya Somin’s book on Kelo. (Ilya replies to the substance here). One of the more salient aspects of the review focused not on the case, but on the author. He writes:
At the time Kelo came down, Ilya Somin was a junior professor at George Mason Law School and a blogger for the Volokh Conspiracy – the most influential conservative law blog in the country. As a committed libertarian and an up-and-coming scholar of property and constitutional law, Somin was ideally situated to serve both as the leading conservative academic commentator on the case and as a participant in the emerging backlash. Somin’s work on eminent domain has consistently straddled these two worlds of scholarship and property rights advocacy. He has written scores of blog posts on the issue. He has testified before the Senate Judiciary Committee, where he criticized then-Supreme Court nominee Sonia Sotomayor for her vote in a post-Kelo eminent domain case while she was a judge on the Second Circuit. But he has also written several well regarded law review articles on Kelo. And now, in his new book, The Grasping Hand:Kelo v. New London & the Limits of Eminent Domain, Somin offers the most comprehensive review to date both of the case itself and of the various legal reforms the backlash against it has sparked. The book is something of a ten-year retrospective of Somin’s own intellectual engagement with the issue of eminent domain.
Law professors occupy a unique role in our society. One the one hand, we are scholars. We are expected to dispassionately analyze what courts do, and provide commentary and insights into the law. But in doing so, it is virtually impossible not to develop opinions about whether the courts acted correctly or incorrectly, or whether the law is heading in a good or bad direction. (This is especially true when writing about constitutional matters). This latter tension doesn’t make dispassionate analysis impossible, but it does make it more difficult–it requires a lot of discipline to not make certain arguments. Many law professors–Ilya and myself included–use this knowledge to engage in forms of advocacy, whether it be writing editorials, filing amicus briefs, or testifying before legislative bodies. Penalver’s analysis of Ilya suggests that the latter affects the former: he “consistently straddled these two worlds of scholarship and property rights advocacy.” It is true, that over the last ten years, it would be impossible to discuss the backlash to Kelo without discussing Ilya (and the Institute for Justice). As much as Ilya became the expert about the case, he became part of the story.
I feel a certain kinship to Ilya, because (no doubt) something very similar could (and probably will) be written about me and Obamacare. I began teaching months after NFIB v. Sebelius was decided, and my first book about it was published shortly after the one year anniversary of the case. Since then, I’ve commented on virtually every aspect of the case in all manners of public fora. What does this mean for my scholarship? In Unprecedented, I went out of my way to be objective. This was feasible because I was a law clerk during the pendency of the case, and didn’t file any briefs, or even write any editorials about the case. Unraveled will not be so easy. I filed a brief in King v. Burwell, filed another one in the Little Sisters Case, and wrote countless editorials about the case. I testified before Congress about DAPA, where I referenced the lawless manner in which the ACA has been implemented. I won’t have the air of objectivity I had in Unprecedented for Unraveled. This was a conscious decision, that I am quite aware of, though I think it does open me up to the same sort of critiques Penalver offered for Ilya. I will try to write Unraveled in the same sort of style as Unprecedented, notwithstanding my personal connections with these cases. I hope it is successful.