Professor Shelley Saxer, "Overturning a Catch-22 in the Knick of Time" -- Fordham Urban Law Journal (forthcoming)

Professor Shelley Ross Saxer's article, "Overturning a Catch-22 in the Knick of Time: Knick v. Township of Scott and the Doctrine of Precedent" (SSRN) will be published in the Fordham Urban Law Journal (forthcoming, 2020). The article is co-authored with Ilya Somin of George Mason School of Law. The article explains why the Supreme Court was justified in overruling longstanding precedent in the recent property rights case, Knick v. Township of Scott.

Abstract of "Overturning a Catch-22 in the Knick of Time: Knick v. Township of Scott and the Doctrine of Precedent"

The Supreme Court's decision in Knick v. Township of Scott was an important milestone in takings jurisprudence. But for many observers, it was even more significant because of its potential implications for the doctrine of stare decisis. Knick overruled a key part of a 34-year-old decision, Williamson County Regional Planning Commission v. Hamilton Bank, that had barred most takings cases from getting a hearing in federal court.

Some fear that the Knick decision signals the start of a campaign by the conservative majority on the Court that will lead to the ill-advised overruling of other precedents. In this article, we explain why such fears are misguided, because Knick's overruling of Williamson County was amply justified under the Supreme Court's established rules for overruling precedent, and also under leading alternative theories of stare decisis, both originalist and living constitutionalist.