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Fischel, William A. --- "The Rest of Michelman 1967" [2011] ELECD 161; in Ayotte, Kenneth; Smith, E. Henry (eds), "Research Handbook on the Economics of Property Law" (Edward Elgar Publishing, 2011)

Book Title: Research Handbook on the Economics of Property Law

Editor(s): Ayotte, Kenneth; Smith, E. Henry

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847209795

Section: Chapter 17

Section Title: The Rest of Michelman 1967

Author(s): Fischel, William A.

Number of pages: 11

Extract:

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 utilitar-
ian 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 recon-
cile 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 ...