About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

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 PROPERTY, UTILITY, AND FAIRNESS: COMMENTS ON THE ETHICAL FOUNDATIONS OF JUST COMPENSATION LAW 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 School. 1165 APRIL 1967 NUMBER 6 VOLUME 80

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most