Response to Stewart E. Sterk & Michael C. Pollack, A Knock on Knick‘s Revival of Federal Takings Litigation.
As Professors Sterk and Pollack noted, “many have cheered” the United States Supreme Court’s holding in Knick v. Township of Scott that overruled the second prong of Williamson County’s ripeness test. Litigants challenging state or local action as a taking were required to first seek compensation under state inverse condemnation provisions. Indeed, I am one of those cheerleaders who has always struggled to understand this ripeness requirement that has kept so many takings claims from being litigated in federal court. It should be noted that the Knick Court left in place the first prong of Williamson County’s ripeness requirement that litigants obtain a final decision from local and state officials before filing their challenges. Obtaining finality before filing has always made sense to me given that determining whether a regulation has gone “too far” (as in Pennsylvania Coal v. Mahon parlance) requires us to understand the extent of its impact on the property interest.
I strongly disagree with the characterization of the Knick decision as resting on a “shaky theoretical foundation.” The disagreement is based on both the merits of the decision and the Court’s willingness to overrule precedent. However, rather than rehashing arguments about the decision’s theoretical strength, the focus of this Response is instead directed to Professors Sterk and Pollack’s practical concerns about whether the decision “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.”