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10/12/2018

Aditya Bamzai & David Goldman on Knick v. Township of Scott
Michael Ramsey

At the Yale Journal on Regulation's Notice and Comment Blog,  Aditya Bamzai & David N. Goldman: The Takings Clause, the Tucker Act, and Knick v. Township of Scott.  From the introduction:

Last week, the Supreme Court heard oral argument in Knick v. Township of Scott, a case that presents the question whether “the Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank, requiring property owners to exhaust state court remedies to ripen federal takings claims.” ...  The Williamson County Court contended that “no constitutional violation occurs until just compensation has been denied” and that the state government had not denied just compensation until its state tribunals had spoken.

... As Justice Kagan put it (on page nine of the transcript): “[W]hen exactly [does] the violation occur[] and why [does] it occur[] before the state denies compensation in the inverse condemnation proceeding? . . . Is that because — are you saying that’s because the right to compensation is immediate; in other words, there’s a right to compensation contemporaneous with the taking?”

As we will explain in a forthcoming article on The Remedial Structure of the Takings Clause, this question, as well as the proper scheme for enforcing the Takings Clause generally, was the subject of debate for well over a century before Williamson CountyJames Kent, a master in chancery in New York who had significant influence on the development of American equitable remedies, discussed the issue in his Commentaries on American Law. “The better opinion,” he wrote, “is, that the compensation, or offer of it, must precede or be concurrent with the seizure and entry upon private property under the authority of the state.” “The government is bound” under the Takings Clause, Kent continued, “to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss their claims on equal terms; and if the government proceed without taking these steps, their officers and agents may, and ought to be restrained by injunction.” (To our knowledge, neither Kent’s Commentaries, nor the cases discussed below, have been brought to the Court’s attention in the briefing in Knick, nor analyzed in the sizable scholarly literature on Williamson County.)

This post will address how Chancellor Kent’s logic plays out in claims against the federal Government, how it plays out in claims against state officers and municipal governments, and the implications for Knick and other related issues.