A Knock on Knick’s Revival of Federal Takings Litigation

31 Pages Posted: 6 Sep 2019 Last revised: 7 Jul 2020

See all articles by Stewart E. Sterk

Stewart E. Sterk

Yeshiva University - Benjamin N. Cardozo School of Law

Michael Pollack

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: September 6, 2019

Abstract

In Knick v. Township of Scott, the Supreme Court held that a landowner who claimed to have suffered a taking at the hands of state or local officials could seek redress in federal court without the need to first seek compensation through state proceedings. This holding rests first on the implicit assumption that states separate powers among branches of government in the same way the federal government does. It also relies on a second assumption: that relegating taking claims to state court makes them unique. Neither is true.

Beyond the opinion’s shaky theoretical foundation, Knick will require federal courts to determine precisely when an alleged “taking” is in fact complete and final—an issue they have heretofore been spared. Moreover, nothing in the Court’s opinion limits its scope to regulatory takings. The opinion simply does not deal with the host of ways in which state and local government can interfere with private property rights. These include taking actions on adjacent property that have adverse impacts on a landowner’s parcel (like sewage backups or flooding), and explicitly exercising the eminent domain power. Unless the Court narrows its opinion, the Court’s conceptual separation of takings from just compensation threatens to open the doors of federal courts to a variety of claims that the Court does not appear to have anticipated, and that federal courts are ill-equipped to address—including but not limited to claims for valuation of property taken through exercise of the eminent domain power.

Keywords: Takings, Property, Land Use, Knick

Suggested Citation

Sterk, Stewart E. and Pollack, Michael, A Knock on Knick’s Revival of Federal Takings Litigation (September 6, 2019). 72 Fla. L. Rev. 419 (2020), Cardozo Legal Studies Research Paper No. 587 (2019), Available at SSRN: https://ssrn.com/abstract=3449281

Stewart E. Sterk (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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212-790-0205 (Fax)

Michael Pollack

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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