80 Harv. L. Rev. 1165 (1966-1967)
Property, Utility, and Fairness: Comments on the Ethical Foundations of Just Compensation Law

handle is hein.journals/hlr80 and id is 1217 raw text is: I HARVARD LAW REVIEW
Frank I. Michelman *
The courts have developed a bewildering array of rules for de-
termining when the government must compensate people for eco-
nomic losses its programs have caused them. Professor Michelman
investigates our practice of compensating for some but not all
losses by asking what general grounds justify programs interfering
with the marketplace's apportionment of goods and services and
why, if intervention is proper, compensation need ever be considered.
He concludes that the line now drawn between compensable and
noncompensable harms diverges from what considerations of utility
or fairness would suggest but that it may be about as perfect as a
system relying mainly on court decisions can achieve. One moral
is that legislatures and administrative agencies have been shirking
their role in the compensation process.
W E shall be dealing here with matters which, were they to
find their way into a treatise on the law of eminent do-
main, would appear in the chapter on What Constitutes a
Taking: General Principles.
Taking is, of course, constitutional law's expression for any
sort of publicly inflicted private injury for which the Constitu-
tion requires payment of compensation. Whether a particular in-
jurious result of governmental activity is to be classed as a
taking is a question which usually arises where the nature of
the activity and its causation of private loss are not themselves
disputed; and so a court assigned to differentiate among impacts
which are and are not takings is essentially engaged in deciding
when government may execute public programs while leaving
associated costs disproportionately concentrated upon one or a
few persons.
It might be thought remarkable that we tolerate even the raising
* BA., Yale, x957; LL.B., Harvard, x96o. Professor of Law, Harvard Law

APRIL 1967



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