Knick and the Elephant in the Courtroom: Who Cares Least About Property Rights?

Abstract

One of the first cases to be argued in the Supreme Court’s 2018-19 term, and one of the last decided, Knick v. Township of Scott overruled a 1985 decision, Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, that required most regulatory takings claims against state and local governments to be filed in state court. Under the new procedural guidelines set forth in Chief Justice Roberts’ majority opinion in Knick, property owners claiming a violation of their rights under the Fifth Amendment’s Takings Clause can file suit for compensation directly in federal court. Although analysts and practitioners differed sharply on the wisdom and doctrinal justification for this change, all agreed that allowing takings plaintiffs access to federal court would result in a marked increase in the number of successful takings claims, resulting in significant new financial liability for overly zealous land use regulators. This Article examines that assumption and finds little support for it in the historical record. Even before Williamson County was handed down, many federal judges were adamant that they had no interest in adjudicating disputes arising from local land use policies. When such cases were nevertheless filed in federal court, they were routinely shunted to state court under the guise of abstention, even at the cost of ignoring the stated criteria of the various abstention doctrines. Finally, when federal takings claims have managed to avoid both Williamson County and abstention, they have seldom prevailed on the merits, and the few that have received awards of damages in the district courts have frequently been overturned on appeal. Whether property owners will find federal courts more hospitable to takings claims now than they were before Knick remains to be seen, but such an outcome can hardly be taken for granted.