Precedent of Justice

Without Precedent
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Pass it on! Williamson County was heavily criticized throughout its year history.

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Among other things, its assumption that property owners would eventually be able to bring their claims to federal court turned out to be mistaken. As the Court later determined in a decision , issue-preclusion rules bar property owners who have litigated and lost a state-law inverse-condemnation claim in state court from asserting a Takings Clause claim in federal court.

Concurring with that judgment on behalf of himself and three other justices, Chief Justice Rehnquist conceded that his Williamson County opinion had not stood the test of time and recommended that the Court reconsider it. The best she could come up with was that Congress could re-open the federal courthouse door by legislatively overruling normally applicable issue-preclusion rules.


Not surprisingly, Justice Kagan cites no precedents of her own for that proposition. Moreover, as Justice Kagan concedes, overruling Williamson County does not upset any reliance interests.

Governments will not be exposed to new, unanticipated liability; they will simply face claims in a new forum. In the past, government officials could go about their business of imposing restrictions on private property uses, secure in the knowledge that their actions would virtually never be deemed a constitutional violation.

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Without Precedent: The Invention of Chief Justice John Marshall

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