A Prudential Take on a Prudential Takings Doctrine

16 Pages Posted: 30 Oct 2018 Last revised: 19 Nov 2018

Date Written: October 5, 2018

Abstract

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the “ripeness” rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaintiffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first — the so-called “compensation prong” (as distinguished from a separate “takings prong”). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a “prudential” rule rather than (as it has previously done) a constitutional one. It then argues that the Court should reject this doctrine not because it is a prudential rule, which would follow a larger trend in recent case discussions, but because it is a bad prudential rule. This path is the prudential one because casting doubt on prudential rules more generally could cause a significant set of additional doctrines to suffer unintended and unwelcome consequences.

Keywords: Federal Courts, Constitutional Law, Property, Civil Rights, Ripeness, Fifth Amendment, Takings, Just Compensation, Federalism, Knick, Williamson County

Suggested Citation

Crocker, Katherine Mims, A Prudential Take on a Prudential Takings Doctrine (October 5, 2018). Michigan Law Review Online, Vol. 117, p. 39, 2018. Available at SSRN: https://ssrn.com/abstract=3262014

Katherine Mims Crocker (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90360
Durham, NC 27708
United States

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