Not Just a Procedural Case: The Substantive Implications of Knick for State Property Law and Federal Takings Doctrine

23 Pages Posted: 26 Dec 2019

Date Written: December 22, 2019

Abstract

The Supreme Court's recent opinion in Knick opinion has received scant attention, perhaps because, wrongly, it is seen as just a procedural decision. Knick is troubling in that it may result in the effective usurpation (albeit only a partial usurpation) by the federal courts of the state courts and legislatures’ role as the authors of substantive property law. For a variety of reasons, federal judges may not consistently interpret state property law — and especially “fuzzy” background principles of law that limit rights of titleholders, such as nuisance and public trust — in the same way as state courts would. It seems quite plausible that, as a result of Knick, state substantive law will be interpreted by federal courts to sometimes afford state officials and regulators less flexibility to deal with the land use challenges posed by climate change than they otherwise would have at their disposal. Knick thus can be understood as an impediment to the productive adaptation of state property law to the real-world demands of climate change adaptation.

Keywords: takings, climate change, property

JEL Classification: K10, K30

Suggested Citation

Dana, David A., Not Just a Procedural Case: The Substantive Implications of Knick for State Property Law and Federal Takings Doctrine (December 22, 2019). Northwestern Law & Econ Research Paper No. 19-11; Northwestern Public Law Research Paper No. 19-26. Available at SSRN: https://ssrn.com/abstract=3508857 or http://dx.doi.org/10.2139/ssrn.3508857

David A. Dana (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-0240 (Phone)
312-503-2035 (Fax)

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