Response to Stewart E. Sterk & Michael C. Pollack, A Knock on Knick‘s Revival of Federal Takings Litigation.
The Supreme Court’s decision in Knick v. Township of Scott, has been criticized for supposedly wreaking havoc on the normal system for adjudicating takings claims, and for seriously violating norms of stare decisis. Stewart Sterk and Michael Pollack’s insightful recent article, is a valuable contribution to this type of critique of Knick. They extend Justice Elena Kagan’s claim in her Knick dissent that the ruling “sends a flood of complex state-law issues to federal courts. It makes federal courts a principal player in local and state land-use disputes.” Sterk and Pollack argue that a wide range of takings-related issues will now find their way to federal court, thereby creating a variety of problems. They also endorse claims that Knick improperly overruled precedent.
But ultimately, their arguments serve to underscore Knick’s normality, and the aberrational nature of Williamson County Regional Planning Commission v. Hamilton Bank, the 1985 precedent Knick overturned. If Sterk and Pollack’s critique of Knick is sound, it would justify barring access to federal court for all sorts of other constitutional claims against state and local governments. These, too, often encompass a wide range of government policies and state and local laws and regulations. If federal courts are to do the job of enforcing federal constitutional rights against violations by state and local governments, they must be prepared to do so in any situations where those violations might arise. If it is common for violations to occur in “local and state land-use disputes,” then federal courts must indeed become “principal players” in that domain. Such involvement would be a feature, not a bug.