Ding, Dong, The Witch is Dead! — Redux

We borrow this title from Michael Berger’s recent LA Daily Journal article, explaining what is so significant about the Supreme Court’s brand new decision in Knick v. Township of Scott. It holds 5 to 4 that constitutionally aggrieved American property owners no longer need to try to litigate their uncompensated taking claims is hostile state courts when they allege that their federal constitutionally protected property rights have been taken from them without compensation. A federal constitutional violation now entitles them to a straightforward federal judicial remedy (just compensation) like all other constitutionally aggrieved Americans, without a costly, uncertain and frustrating detour through state courts that as often as not provides them with no remedy, and consumes fortunes in pointless litigation. Knick’s holding restores takings claims to the same posture as those of all other constitutionally aggrieved Americans. Nice going, Your Honors!

Knick’s holding embodies a proposition of law that is so simple that you’d think no one would be able to argue with it — see the language of the Takings Clause of the Fifth Amendment, US Code 42 Sec. 1983 and all that other good stuff. But if you wonder what all the fuss has been about, you are probably underestimating the stubborn fierceness of the anti-property rights movement in America that for the past 30+ years has done its best to deny Americans the benefit of Justice Holmes’ 1920s holding that when the government regulates property in so severe a fashion as to deny its owners utility and value, that becomes de facto its taking for which just compensation must be paid.

So much has already been written about this in the past few days (with more coming) that at this point we refuse to add to the profligate slaughter of trees being consumed in producing the paper used in this enterprise. So enough for now! If you are a real taking junkie, we recommend the usual suspects: (a) for exhaustive treatment of the various approaches: there is Robert Thomas’ estimable blog www.inversecondemnation.com which will tell you what you need to know to understand  the various legal approaches to this legal problem, how it began, and how it was solved. And (b) you might also take a look at two other things: one, the Knick opinions themselves, both in their majority — a masterpiece of legal writing by the Chief Justice — and the positively wacky and at times rather hysterical 4-Justice dissent by Justice Kagan, informing us that the sky has fallen and that henceforth SCOTUS precedent isn’t worth the paper it’s written  on. Don’t take our word for it. Look at it yourself, particularly the dissent’s peroration which is as good an example of over-the-top legal writing  as you are likely to find. It is so extreme and one-sided that if you take it at face value, you’d have to think that Brown v. Board of Education was wrongly decided because it broke with precedent instead of beseeching the legislature to help out.

Saving the best for last, do read the short Los Angeles Daily Journal article (entitled Ding, Dong, the Witch is Dead! — same as this blog post). This is intellectual gourmet stuff that has earned it author, Michael M. Berger, his unmatched reputation as a commentator and advocate in this field.

So pour yourself a drink, put your feet up, and get on with your reading. If you have an interest in this stuff, you won’t regret it.