Federal Courts and Takings Litigation
97 Notre Dame Law Review (Forthcoming)
34 Pages Posted: 12 Jan 2021 Last revised: 22 Mar 2021
Date Written: January 11, 2021
Disagreements about takings claims extend to both substantive and jurisdictional issues. Many advocates of deference to state and local government land use decisions also oppose a significant role for federal courts in adjudicating disputes over these decisions, while a number of property rights advocates argue that federal courts are an appropriate forum for such disputes. These issues were brought into sharp relief by the Supreme Court’s 2019 decision in Knick v. Township of Scott, which allows property owners to resort to federal court without first pursuing compensation in state court.
While Knick clearly expands the lower federal court role in takings claims, many questions remain, for it is not yet clear whether federal courts will embrace a robust federal judicial role in land use cases. This Article surveys the history of takings claims in the federal courts and recommends that going forward federal courts develop an abstention doctrine particular to takings cases in order to ensure prudent deployment of judicial resources. This Article also explains why § 1331 actions may be superior vehicles for takings cases than § 1983 actions.
Keywords: takings, eminent domain, just compensation, federal courts, federal jurisdiction, abstention, property, land use, Knick, Pullman abstention, Burford abstention
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