Edited by Kenneth Ayotte and Henry E. Smith
Chapter 17: The Rest of Michelman 1967
William A. Fischel* Frank Michelman’s 1967 article, ‘Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law,’ is the most influential article on the takings issue and one of the most-cited articles in law. This review is a description of the structure of his article and its major points. My purpose in publishing this is derived from my observation that Michelman’s article is usually presented to students of takings law by way of excerpts. The parts excerpted are almost always the utilitarian and Rawlsian criteria for deciding when to compensate disappointed claimants and when to leave their losses where they lie. Although these are important parts (and will be discussed below), the structure of Michelman’s whole article reflects an approach to takings that strongly qualifies his famous criteria. This chapter reflects my opinions, not those of Michelman. The present chapter is intended primarily to induce students of regulatory takings to look at the rest of Michelman’s enduringly famous article. For that reason, it is brief, and I omit most citations that are found in his article.1 Parenthetical page numbers refer to those in 80 Harvard Law Review. Michelman starts Part I with a philosophical conundrum. How can scholars reconcile philosopher Leonard Hobhouse’s rigid insistence that society should not sacrifice the well-being of a single person for the benefit of many with the ‘worldly wise’ view of Oliver Wendell Holmes, Jr., that government should not sacrifice the citizen ‘more than it can help’ (p. 1166)? Michelman goes...
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