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Thoughts on Today's Supreme Court Oral Argument in Knick v. Township of Scott – a Crucial Property Rights Case

October 3, 2018 in Economics

By Ilya Somin

Ilya Somin

Earlier today, the Supreme Court heard oral arguments in
Knick v. Township of Scott, an
important Takings Clause property rights case. The outcome in the
case is far from clear. Predicting the justices’ votes based on
oral argument is far from an exact science. But property rights
advocates have grounds for cautious optimism.

Property rights advocates
have grounds for cautious optimism.

The main point at issue in Knick is whether the Court
should overrule or limit Williamson
County Regional Planning Commission v. Hamilton Bank
, a
1985 decision that makes it virtually impossible to bring many
types of takings cases in federal court. Under Williamson
, a property owner who contends that the government has
taken his property and therefores owes “just compensation” under
the Fifth Amendment, cannot file a case in federal court until he
or she has first secured a “final decision” from the relevant state
regulatory agency and has “exhausted” all possible remedies in
state court. At that point, it is still often impossible
to bring a federal claim, because various procedural rules preclude
federal courts from reviewing state court decisions in cases where
the case was initially brought in state court. I discussed the
issues at stake in the case in a recent Wall Street Journal op ed,
and more fully here, and in an amicus brief I coauthored on behalf of the
Cato Institute, the National Federation of Independent Business,
the Southeastern Legal Foundation, the Beacon Center of Tennessee,
the Reason Foundation (which publishes Reason magazine and
this website), and myself.

After reading the oral argument transcript, it seems to me
there is a decent chance of a 5-3 decision in favor of the property
owner, one that will overrule or significantly limit Williamson
. The three conservative justices who asked questions -
Chief Justice John Roberts, Samuel Alito, and Neil Gorsuch, all
seemed clearl sympathetic to the property owner’s argument. For
example, the Chief Justice was highly skeptical of the main
justification for Williamson County: that no real
violation of the Takings Clause has occurred until state courts
rule against providing compensation. As Roberts noted in a question
to the lawyer for the township, “the compensation that is due runs
from the moment of the taking… In other words, if it takes you
six months to adjudicate the— the claim and you say, well,
this is how much you owe, you owe interest going all the way back
to the point at which the property was taken…” Gorsuch similarly
indicated that “maybe it makes sense to wait when the state has
acknowledged …read more

Source: OP-EDS

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