R.S. Radford’s most-recent article, Knick and the Elephant in the Courtroom: Who Cares Least About Property Rights? in the latest issue of the Texas A&M Journal of Property Law, should be next on your to-read list. 

Here’s the summary of the article:

Throughout the thirty-four-year history of Williamson County, one fact was taken for granted. Never directly mentioned but always looming in the background of two rounds of oral argument before the Supreme Court in Knick was the premise that relegating takings claims to state court made it less likely that property owners would prevail on those claims than if they could be filed in federal court in the first instance. This Article examines that premise and finds little support for it in the historical record.

Part I of this Article discusses Williamson County and highlights the logical, doctrinal, and procedural confusion associated with the opinion, both in its conception and as the consequences of the ruling were revealed over time. It concludes with a brief review of the Knick decision, which finally laid Williamson County to rest. Part II turns to the “elephant in the courtroom”—the generally unspoken assumption that reopening the federal courthouse doors to takings claims will significantly increase the number of claims that result in awards of compensation. Part II also points out that, both before Williamson County and after, federal courts have expressed a strong distaste, if not outright contempt, for becoming involved in land-use disputes. A review of the pre-Williamson County practice of invoking abstention to clear the federal judiciary’s calendar of takings cases is followed by an examination of the extremely low success rate of takings cases that have managed to avoid both Williamson County and abstention and adjudicated on their merits in federal court. A case study of Guggenheim v. City of Goleta exemplifies the Ninth Circuit’s policy of dismissing takings challenges to regulations that predate a plaintiff’s acquisition of title—in direct contravention of the Supreme Court’s ruling in Palazzolo v. Rhode Island. Finally, the Ninth Circuit’s most recent foray into takings law, Bridge Aina Le’a v. State of Hawaii Land-Use Commission, raises the question of whether the Circuit is flouting the Seventh Amendment’s Re-examination Clause in its eagerness to set aside jury verdicts of takings liability. Part IV concludes this Article by reminding the reader that Knick has essentially returned federal takings jurisprudence to where it stood in 1984—before Williamson County cut off its development by diverting most takings cases to state court. How the federal judiciary responds to the Knick challenge will set the parameters of takings law for the twenty-first century.

7 Tex. A & M L. Rev. at 579-580 (footnotes omitted).

Radford highlights a point that we’ve made also (thanks for the shout-outs, R.S.) – that until the courts clean up substantive takings doctrine, the availability of a federal forum – while it will help – won’t be a true game-changer.

The entire article is worth your time.

R.S. Radford, Knick and the Elephant in the Courtroom: Who Cares Least About Property Rights?, 7 Tex. A & M…