In Knick v. Township of Scott, the United States 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 raises
serious theoretical and practical concerns. On the theoretical side, Knick
rests 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