Takings

My New Article on "The Normality of Knick"

It responds to a critique of the Supreme Court's major property rights ruling in Knick v. Township of Scott, by Profs. Stewart Sterk and Michael Pollack.

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

 

The Florida Law Review Forum has just published my new response article "The Normality of Knick: A Response to Sterk and Pollack." The piece focuses on the ongoing debate over the Supreme Court's controversial decision in Knick v. Township of Scott. It is now available for free download on SSRN. Here is the abstract:

The Supreme Court's decision in Knick v. Township of Scott (2019), has been criticized for supposedly wreaking havoc on the normal system for adjudicating takings claims, and for seriously violating norms of stare decisis. Stewart Sterk and Michael Pollack's insightful recent article is a valuable contribution to this type of critique of Knick. They expand on Justice Elena Kagan's claim in her Knick dissent that the ruling "sends a flood of complex state-law issues to federal courts. It makes federal courts a principal player in local and state land-use disputes." Sterk and Pollack argue that a wide range of takings-related issues will now find their way to federal court, thereby creating a variety of problems. They also endorse claims that Knick improperly overruled precedent. But ultimately, their arguments serve to underscore Knick's normality, and the aberrational nature of Williamson County Regional Planning Commission v. Hamilton Bank (1985), the precedent Knick overturned.

If Sterk and Pollack's critique of Knick is sound, it would justify barring access to federal court for many other constitutional claims against state and local governments. These, too, often encompass a wide range of government policies. If federal courts are to do the job of enforcing constitutional rights against violations by state and local governments, they must be prepared to do so in any situations where those violations might arise. Property rights claims under the Takings Clause of the Fifth Amendment are no exception to this vital rule.

The article by Sterk and Pollack criticized in my response is available here and here. The Florida Law Review Forum also solicited a response by Prof. Shelley Ross Saxer, and leading property scholar. Her response has also been published, and is available here.

This is my third academic article about Knick! I did not expect to write so much about this case. But I keep getting interesting invitations to do so, and could not resist the temptation to accept.

I previously wrote a general defense of Knick, for the Cato Supreme Court Review, and an analysis of Knick's treatment of the doctrine of stare decisis for a symposium about Knick in the Fordham Urban Law Journal (coauthored with Shelley Ross Saxer). If things continue in this vein, I might end up writing a book about the case.

On a slightly more serious note, I actually doubt that Knick would make a good subject for a book. But the case does raise important issues about takings, federalism, the significance of constitutional property rights, and the role of precedent. Thus, it may continue to be a focus of debate for some time to come.