Weighing the Need to Establish Regulatory Takings Doctrine to Justify Takings Standards of Review and Principles

This article revisits and examines whether the fairness and justice doctrine of Armstrong v. United States can justify and fashion standards of review to protect the right to just compensation of the Takings Clause. The Court has relied on Armstrong to show the purpose of the Takings Clause in many takings decisions. However, can Armstrong serve a greater purpose? In Dolan v. City of Tigard, the United States Supreme Court applied the unconstitutional conditions doctrine to justify the need for a standard of review to protect the right to just compensation.

The Court transported questionable constitutional doctrine to validate Justice Holmes’s regulatory takings theory. Yet, in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, the Court applied Armstrong’s fairness and justice doctrine to justify not applying standards of review to a complete range of factual theories of regulatory takings theory. Therefore, the Court leads one to ask whether the Armstrong fairness and justice doctrine should be considered in justifying the selection of standards of review and principles to protect the right to just compensation.