Takings

Forthcoming Article on "Overturning a Catch-22 in the Knick of Time: Knick v. Township of Scott and the Doctrine of Precedent"

The article explains why the Supreme Court was justified in overruling longstanding precedent in this important recent constitutional property rights case.

|The Volokh Conspiracy |

Rose Mary Knick, the plaintiff in Knick v. Township of Scott, with her lawyers from the Pacific Legal Foundation. (Pacific Legal Foundation).

 

My forthcoming article, "Overturning a Catch-22 in the Knick of Time: Knick v. Township of Scott and the Doctrine of Precedent" (Fordham Urban Law Journal, symposium issue) is now available for free downloading at the SSRN website. The article is coauthored with Prof. Shelley Ross Saxer of Pepperdine University, a leading property law scholar. Here is the abstract:

The Supreme Court's decision in Knick v. Township of Scott was an important milestone in takings jurisprudence. But for many observers, it was even more significant because of its potential implications for the doctrine of stare decisis. Knick overruled a key part of a 34-year-old decision, Williamson County Regional Planning Commission v. Hamilton Bank, that had barred most takings cases from getting a hearing in federal court.

Some fear that the Knick decision signals the start of a campaign by the conservative majority on the Court that will lead to the ill-advised overruling of other precedents. In this article, we explain why such fears are misguided, because Knick's overruling of Williamson County was amply justified under the Supreme Court's established rules for overruling precedent, and also under leading alternative theories of stare decisis, both originalist and living constitutionalist.

Part I of this Article briefly summarizes the reasons why Williamson County was wrongly decided, and why the Knick Court was justified in overruling it on the merits — at least aside from the doctrine of stare decisis. The purpose of this Article is not to defend Knick's rejection of Williamson County against those who believe the latter was correctly decided. For present purposes, we assume that Williamson County was indeed wrong, and consider whether the Knick Court should have nonetheless refused to overrule it because of the doctrine of stare decisis. But the reasons why Williamson County was wrong are relevant to assessing the Knick Court's decision to reverse it rather than keeping it in place out of deference to precedent.

Part II shows that Knick's overruling of Williamson County was amply justified based on the Supreme Court's existing criteria for overruling constitutional decisions, which may be called its "precedent on overruling precedent." It also addresses Justice Elena Kagan's claim, in her Knick dissent, that the majority's conclusion requires reversing numerous cases that long predate Knick. Part III explains why the overruling of Williamson County was justified based on leading current originalist theories of precedent advanced by prominent legal scholars, and by Supreme Court Justice Clarence Thomas in his recent concurring opinion in Gamble v. United States. In Part IV, we assess the overruling of Williamson County from the standpoint of prominent modern "living constitutionalist" theories of precedent. Here too, it turns out that overruling was well-founded.

This article focuses on the stare decisis issues raised by Knick. Last summer, I published another article that explores the underlying merits of the decision, aside from the the issue of precedent.

Ironically, the article on Knick and stare decisis turned out to be substantially longer than the the piece focusing on the case as a whole! That's because it took a lot of space to go over all the different major theories of precedent out there, and explain how they apply to Knick's overruling of Williamson County.

If nothing else, I learned about the various theories of stare decisis in the process of writing this article. Shelley and I also got to consult with many of the leading scholars working in this field, who generously gave useful advice.

Among the many notable works on the subject of precedent, I recommend recent books by Randy Kozel and Bryan Garner, and this article by Larry Solum. In the Knick article, we also discuss major contributions by many other constitutional law luminaries, including the Volokh Conspiracy's own Randy Barnett and Will Baude, and judges such as Elena Kagan, Antonin Scalia, and Amy Coney Barrett.

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  1. Relying on bad precedent (even for sake of consistancy in the law ) allows for further morphing away from the constitution.

    For examples – look to Kelo, Stevens dissent in McDonald, Gamble, to name just a few

    1. Relying on the legal world as it exists tends to be the best way to actually engage with, and thus change it.

      Your logic of living only in the world as you believe it should be is similar to that of sovereign citizens, and where does that get them?

  2. “Among the many notable works on the subject of precedent, I recommend recent books by Randy Kozel and Bryan Garner, and this article by Larry Solum. In the Knick article, we also discuss major contributions by many other constitutional law luminaries, including the Volokh Conspiracy’s own Randy Barnett and Will Baude, and judges such as Elena Kagan, Antonin Scalia, and Amy Coney Barrett.”

    You need to find some new professional playmates, professor. The liberal-libertarian mainstream could use your libertarian insights. Plus, exposure to the Federalist Society seems to be eating your brain.

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