Overturning a Catch-22 in the Knick of Time: Knick v. Township of Scott and the Doctrine of Precedent

48 Pages Posted: 24 Jan 2020 Last revised: 23 Apr 2020

See all articles by Ilya Somin

Ilya Somin

George Mason University - Antonin Scalia Law School, Faculty

Shelley Ross Saxer

Pepperdine University School of Law

Date Written: January 21, 2020

Abstract

The Supreme Court’s decision in Knick v. Township of Scott was an important milestone in takings jurisprudence. But for many observers, it was even more significant because of its potential implications for the doctrine of stare decisis. Knick overruled a key part of a 34-year-old decision, Williamson County Regional Planning Commission v. Hamilton Bank, that had barred most takings cases from getting a hearing in federal court.

Some fear that the Knick decision signals the start of a campaign by the conservative majority on the Court that will lead to the ill-advised overruling of other precedents. In this article, we explain why such fears are misguided, because Knick’s overruling of Williamson County was amply justified under the Supreme Court’s established rules for overruling precedent, and also under leading alternative theories of stare decisis, both originalist and living constitutionalist.

Part I of this Article briefly summarizes the reasons why Williamson County was wrongly decided, and why the Knick Court was justified in overruling it on the merits — at least aside from the doctrine of stare decisis. The purpose of this Article is not to defend Knick’s rejection of Williamson County against those who believe the latter was correctly decided. For present purposes, we assume that Williamson County was indeed wrong, and consider whether the Knick Court should have nonetheless refused to overrule it because of the doctrine of stare decisis. But the reasons why Williamson County was wrong are relevant to assessing the Knick Court’s decision to reverse it rather than keeping it in place out of deference to precedent.

Part II shows that Knick’s overruling of Williamson County was amply justified based on the Supreme Court’s existing criteria for overruling constitutional decisions, which may be called its “precedent on overruling precedent.” It also addresses Justice Elena Kagan’s claim, in her Knick dissent, that the majority’s conclusion requires reversing numerous cases that long predate Knick. Part III explains why the overruling of Williamson County was justified based on leading current originalist theories of precedent advanced by prominent legal scholars, and by Supreme Court Justice Clarence Thomas in his recent concurring opinion in Gamble v. United States. In Part IV, we assess the overruling of Williamson County from the standpoint of prominent modern “living constitutionalist” theories of precedent. Here too, it turns out that overruling was well-founded.

Other recent decisions reversing established precedent may be more troubling. But Knick was amply justified.

Keywords: Knick, Williamson County, Takings, precedent, Bill of Rights, Fifth Amendment, property rights, John Roberts, Elena Kagan, stare decisis, regulatory takings, inverse condemnation, originalism, living constitutionalism, constitutional theory

JEL Classification: K10, K11, Q24

Suggested Citation

Somin, Ilya and Saxer, Shelley Ross, Overturning a Catch-22 in the Knick of Time: Knick v. Township of Scott and the Doctrine of Precedent (January 21, 2020). George Mason Legal Studies Research Paper No. LS 20-01; Pepperdine University Legal Studies Research Paper 2020/3; Fordham Urban Law Journal, Vol. 47, No. 3, pp. 545-589, 2020 (Symposium on Knick v. Township of Scott). Available at SSRN: https://ssrn.com/abstract=3523194 or http://dx.doi.org/10.2139/ssrn.3523194

Ilya Somin (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8069 (Phone)
703-993-8124 (Fax)

HOME PAGE: http://sls.gmu.edu/ilya-somin/

Shelley Ross Saxer

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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