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
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: Suggested Citation