After Tahoe Sierra, One Thing is Clearer: There is Still a Fundamental Lack of Clarity

After a brief introduction into the development of the regulatory takings 40 this Note examines the two aforementioned effects of the Tahoe Sierra decision and illustrates how they have already manifested themselves in cases decided since the Supreme Court announced its decision. More significantly, this Note then critiques one prong of the Penn Central balancing test—the “investment-backed expectations” factor—and illustrates some of the critical flaws inherent in both the rationale behind, and the application of, that factor by the courts. The critique challenges both the general utility and the desirability of the Court’s Penn Central balancing approach. This Note concludes by suggesting an alternative approach for analyzing future regulatory takings claims.