1070
Stevens, J., dissenting
lands, see, e. g., 16 U. S. C. § 1451 et seq., shapes our evolving understandings of property rights.
Of course, some legislative redefinitions of property will effect a taking and must be compensated—but it certainly cannot be the case that every movement away from common law does so. There is no reason, and less sense, in such an absolute rule. We live in a world in which changes in the economy and the environment occur with increasing frequency and importance. If it was wise a century ago to allow government " 'the largest legislative discretion' " to deal with " 'the special exigencies of the moment,' " Mugler, 123 U. S., at 669, it is imperative to do so today. The rule that should govern a decision in a case of this kind should focus on the future, not the past.5
The Court's categorical approach rule will, I fear, greatly hamper the efforts of local officials and planners who must deal with increasingly complex problems in land-use and environmental regulation. As this case—in which the claims of an individual property owner exceed $1 million—well demonstrates, these officials face both substantial uncertainty because of the ad hoc nature of takings law and unacceptable penalties if they guess incorrectly about that law.6
5 Even measured in terms of efficiency, the Court's rule is unsound. The Court today effectively establishes a form of insurance against certain changes in land-use regulations. Like other forms of insurance, the Court's rule creates a "moral hazard" and inefficiencies: In the face of uncertainty about changes in the law, developers will overinvest, safe in the knowledge that if the law changes adversely, they will be entitled to compensation. See generally Farber, Economic Analysis and Just Compensation, 12 Int'l Rev. of Law & Econ. 125 (1992).
6 As the Court correctly notes, in regulatory takings, unlike physical takings, courts have a choice of remedies. See ante, at 1030, n. 17. They may "invalidat[e the] excessive regulation" or they may "allo[w] the regulation to stand and orde[r] the government to afford compensation for the permanent taking." First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 335 (1987) (Stevens, J., dissenting); see also id., at 319-321. In either event, however, the costs to the government are likely to be substantial and are therefore likely to impede the development of sound land-use policy.
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