Federal Courts and Takings Litigation

This Article first gives an overview of the role of the federal courts in takings claims over time, with a view to providing a more complete picture than that supplied by focusing either on the Lochner/New Deal-era dichotomy or on the advent of the 1871 Civil Rights Act (current § 1983). It traces the fairly robust role of the federal courts in protecting property under a nonconfiscation norm both before and during the Lochner era. It also points out that the legislative history of the 1871 Civil Rights Act does not support a firm conclusion that Congress intended takings claims to be litigable under § 1983. And § 1983 thereafter played little role in takings cases, which were generally pursued as claims under diversity jurisdiction or under the federal question statute, 28 U.S.C. § 1331. The New Deal saw the federal courts’ retreat from the non-confiscation norm, and the rise of abstention doctrines that reduced the federal court role in adjudicating such claims. But the retreat from stringent substantive standards, as well as from federal court jurisdiction, were more muted in takings claims than in other types of economic claims. The history thus indicates that the lower federal courts maintained a moderately active role in land use decisions during the nineteenth century and during most of the twentieth century. It was only with the Court’s 1985 decision in Williamson County that the Supreme Court reduced the federal courts’ role in takings to an extent comparable to the New Deal decline with respect to other economic rights. That decision offset for a time the potential increase of takings claims that might have arisen from the Court’s 1978 decision in Monell v. New York Department of Social Services, which held that municipalities were suable persons under § 1983. Going forward after Knick’s overturning Williamson County, we ask: What role should the federal courts play? The demise of Williamson suggests that the federal courts may significantly increase their role in land use decisions, but it may also suggest that they will more actively use abstention doctrines to reduce Knick’s impact. We evaluate the use of Pullman and Burford abstention doctrines in takings claims, and find them inapt. We suggest an abstention doctrine specially for takings cases that would sort out cases where the federal courts are most likely to contribute to fair applications of the law. Finally, we suggest that constitutionally-based actions brought under § 1331 may be better homes for takings cases than § 1983 actions.