Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation”

Frank I. Michelman

The courts have developed a bewildering array of rules for determining when the government must compensate people for economic 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.

Author: international