Additional Tools, Techniques and Dilemmas

This document includes the cases and articles listed below in italics. You may find some of the principles described in the articles useful in doing your analysis of the cases.

Velasquez, Distributive Justice
Rich Dead, Poor Dead
Kelo vs. City of New London

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Distributive Justice
Manuel Velasquez

Questions of distributive justice arise when different people put forth conflicting claims on society's benefits and burdens and all the claims cannot be satisfied. The central cases are those where there is a scarcity of benefits such as jobs, food, housing, medical care, income, and wealth-as compared to the numbers and the desires of the people who want these goods. Or (the other side of the coin) there may be too many burdens - unpleasant work, drudgery, substandard housing, health injuries of various sorts-and not enough people willing to shoulder them. If there were enough goods to satisfy everyone's desires and enough people willing to share society's burdens, then conflicts between people would not arise and distributive justice would not be needed.

When people's desires and aversions exceed the adequacy of their resources, they are forced to develop principles for allocating scarce benefits and undesirable burdens in ways that are just and that resolve the conflicts in a fair way. The development of such principles is the concern of distributive justice. The fundamental principle of distributive justice is that equals should be treated equally and unequals, unequally. More precisely, the fundamental principle of distributive justice may be expressed as follows:

Individuals who are similar in all respects relevant to the kind of treatment in question should be given similar benefits and burdens, even if they are dissimilar in other irrelevant respects; and individuals who are dissimilar in a relevant respect ought to be treated dissimilarly, in proportion to their dissimilarity.

If, for example, Susan and Bill are both doing the same work for me and there are no relevant differences between them or the work they are doing, then in justice I should pay them equal wages. However, if Susan is working twice as long as Bill and if length of working time is the relevant basis for determining wages on the sort of work they are doing, then, to be just, I should pay Susan twice as much as Bill. Or, to return to our earlier example, if the federal government rightly helps workers who have suffered from black lung and there are no relevant differences between such workers and workers who have suffered from brown lung, then, as Senator Thurmond said, it is "fair that those who have suffered from brown lung [also] receive federal consideration."

This fundamental principle of distributive justice, however, is purely formal. It is based on the purely logical idea that we must be consistent in the way we treat similar situations. The principle does not specify the "relevant respects" that may legitimately provide the basis for similarity or dissimilarity of treatment. Is race, for example, relevant when determining who should get what jobs? Most of us would say no, but then what characteristics are relevant when determining what benefits and burdens people should receive? We will turn now to examine different views on the kinds of characteristics that may be relevant when determining who should get what. Each of these views provides a "material" principle of justice-that is, a principle that gives specific content to the fundamental principle of distributive justice. For example, one simple principle that people often use to decide who should receive a limited or scarce good is the "first come, first served" principle that operates when waiting in line to receive something as well as in the seniority systems that businesses use. The "first come, first served" principle assumes that being first is a relevant characteristic for determining who should be the first party served when not all can be served at once. The reader can undoubtedly think of many other such simple principles that we use. We will here concentrate, however, on several principles that are often thought to be more fundamental than principles such as "first come, first served."

Justice as Equality: Egalitarianism

Egalitarians hold that there are no relevant differences among people that can justify unequal treatment. According to the egalitarian, all benefits and burdens should be distributed according to the following formula:

Every person should be given exactly equal shares of a society's or a group's benefits and burdens.

Egalitarians base their view on the proposition that all human beings are equal in some fundamental respect and that, in virtue of this equality, each person has an equal claim to society's goods. This, according to the egalitarian, implies that goods should be allocated to people in equal portions.

Equality has been proposed as a principle of justice not only for entire societies, but also within smaller groups or organizations. Within a family, for example, it is often assumed that children should, over the course of their lives, receive equal shares of the goods parents make available to them. In some companies and in some workgroups, particularly when the group has strong feelings of solidarity and is working at tasks that require cooperation, workers feel that all should receive equal compensation for the work they are doing. Interestingly, when workers in a group receive equal compensation, they tend to become more cooperative with each other and to feel greater solidarity with each other. Also interestingly, workers in countries-such as Japan-that are characterized as having a more collectivist culture, prefer the principle of equality more than workers in countries-such as the United States - that are characterized as having a more individualistic culture.

Equality has, of course, appeared to many as an attractive social ideal and inequality, as a defect. "All men are created equal," says our Declaration of Independence, and the ideal of equality has been the driving force behind the emancipation of slaves, the prohibition of indentured servitude, the elimination of racial, sexual, and property requirements on voting and holding public office, and the institution of free public education. Americans have long prided themselves on the lack of overt status consciousness in their social relations.

In spite of their popularity, however, egalitarian views have been subjected to heavy criticisms. One line of attack has focused on the egalitarian claim that all human beings are equal in some fundamental respect. Critics claim that there is no quality that all human beings possess in precisely the same degree: Human beings differ in their abilities, intelligence, virtues, needs, desires, and in all their other physical and mental characteristics. If this is so, then human beings are unequal in all respects.
A second set of criticisms argues that the egalitarian ignores some characteristics that should be taken into account in distributing goods both in society and in smaller groups: need, ability, and effort. If everyone is given exactly the same things, critics point out, then the lazy person will get as much as the industrious one, even though the lazy one does not deserve as much. If everyone is given exactly the same, then the sick person will get only as much as healthy ones, even though the sick person needs more. If everyone is given exactly the same, the handicapped person will have to do as much as more able persons, even though the handicapped person has less ability. And if everyone is given exactly the same, then individuals will have no incentives to exert greater efforts in their work; as a result, society's productivity and efficiency will decline. Since the egalitarian formula ignores all these facts, and since it is clear that they should be taken into account, critics allege, egalitarianism must be mistaken.

Some egalitarians have tried to strengthen their position by distinguishing two different kinds of equality: political equality and economic equality. Political equality refers to an equal participation in, and treatment by, the means of controlling and directing the political system. This includes equal rights to participate in the legislative process, equal civil liberties, and equal rights to due process. Economic equality, on the other hand, refers to equality of income and wealth and equality of opportunity. The criticisms leveled against equality, according to some egalitarians, apply only to economic equality and not to political equality. Although everyone will concede that differences of need, ability, and effort may justify some inequalities in the distribution of income and wealth, everyone will also agree that political rights and liberties should not be unequally distributed. Thus, the egalitarian position may be correct with respect to political equality, even if it is mistaken with respect to economic equality.

Other egalitarians have claimed that even economic equality is defensible if it is suitably limited. Thus, they have argued that every person has a right to a minimum standard of living and that income and wealth should be distributed equally until this standard is achieved for everyone. The economic surplus that remains after everyone has achieved the minimum standard of living can then be distributed unequally according to need, effort, and so on. A major difficulty that this limited type of economic egalitarianism must face, however, is specifying what it means by "minimum standard of living." Different societies and different cultures have different views as to what constitutes the necessary minimum to live on. A relatively primitive economy will place the minimum at a lower point than a relatively affluent one. Nonetheless, most people would agree that justice requires that affluent societies satisfy at least the basic needs of their members and not let them die of starvation, exposure, or disease.

Justice Based on Contribution: Capitalist Justice

Some writers have argued that a society's benefits should be distributed in proportion to what each individual contributes to a society and/or to a group. The more a person contributes to a society's pool of economic goods, for example, the more that person is entitled to take from that pool; the less Ian individual contributes, the less that individual should get. The more a worker contributes to a project, the more he or she should be paid. According to this "capitalist" view of justice, when people engage in economic exchanges with each other, what a person gets out of the exchange should be at least equal in value to what he or she contributed. Justice requires, then, that the benefits a person receives should be proportional to the value of his or her contribution. Quite simply:

Benefits should be distributed according to the value of the contribution the individual makes to a society, a task, a group, or an exchange.

The principle of contribution is, perhaps, the most widely used principle of fairness used to establish salaries and wages in American companies. In workgroups, particularly when relationships among the members of the group are impersonal and the product of each worker is independent of the efforts of the others, workers tend to feel that they should be paid in proportion to the work they have contributed. Sales people out on the road, for example, or workers at individual sewing machines sewing individual garments or doing other piece-work, tend to feel that they should be paid in proportion to the quantity of goods they have individually sold or made. Interestingly, when workers are paid in accordance with the principle of contribution, this tends to promote among them an uncooperative and even competitive atmosphere in which resources and information are less willingly shared and in which status differences emerge. Workers in countries that are characterized as having a more individualistic culture - such as the United States - prefer the principle of contribution more than workers in countries that are characterized as having a more collectivist culture such as Japan.

The main question raised by the contribution principle of distributive justice is how the "value of the contribution" of each individual is to be measured.

One long-lived tradition has held that contributions should be measured in terms of work effort. The more effort people put forth in their work, the greater the share of benefits to which they are entitled. The harder one works, the more one deserves. This is the assumption behind the "Puritan ethic," which held that every individual had a religious obligation to work hard at his "calling" (the career to which God summons each individual) and that God justly rewards hard work with wealth and success, while He justly punishes laziness with poverty and failure. In the United States this Puritan ethic has evolved into a secularized "work ethic" which places a high value on individual effort and which assumes that, whereas hard work does and should lead to success, loafing is and should be punished.

However, there are many problems with using effort as the basis of distribution. First, to reward a person's efforts without any reference to whether the person produces anything worthwhile through these efforts is to reward incompetence and inefficiency, Second, if we reward people solely for their efforts and ignore their abilities and relative productivity, then talented and highly productive people will be given little incentive to invest their talent and productivity in producing goods for society. As a result, society's welfare will decline.

A second important tradition has held that contributions should be measured in terms of productivity: The better the quality of a person's contributed product, the more he or she should receive. ("Product" here should be interpreted broadly to include services rendered, capital invested, commodities manufactured, and any type of literary, scientific, or aesthetic works produced.) A major problem with this second proposal is that it ignores people's needs. Handicapped, ill, untrained, and immature persons may be unable to produce anything worthwhile; if people are rewarded on the basis of their productivity, the needs of these disadvantaged groups will not be met. The main problem with this second proposal is that it is difficult to place any objective measure on the value of a person's product, especially in fields such as the sciences, the arts, entertainment, athletics, education, theology, and health care. Who would want to have their products priced on the basis of someone else's subjective estimates?

In order to deal with the last difficulty mentioned, some authors have suggested a third and highly influential version of the principle of contribution: They have argued that the value of a person's product should be determined by the market forces of supply and demand.$$ The value of a product would then depend not on its intrinsic value but on the extent to which it is both relatively scarce and is viewed by buyers as desirable. In other words, the value of a person's contribution is equal to whatever that contribution would sell for on an open market. People then "deserve" to receive in exchange with others, whatever the market value of their product is worth. Unfortunately, this method of measuring the value of a person's product still ignores people's needs. Moreover, to many people market prices are an unjust method of evaluating the value of a person's product precisely because markets ignore the intrinsic values of things. Markets, for example, reward entertainers more than doctors. Also, markets often reward a person who through pure chance has ended with something (an inheritance, for example) that is scarce and that people happen to want. This, to many, seems the height of injustice.

Justice Based on Needs and Abilities: Socialism

Since there are probably as many kinds of socialism as there are socialists, it is somewhat inaccurate to speak of "the" socialist position on distributive justice. Nonetheless, the dictum proposed first by Louis Blanc (1811-1882) and then by Karl Marx (1818-1883) and Nikolai Lenin (1870-1924) is traditionally taken to represent the "socialist" view on distribution: "From each according to his ability, to each according to his needs." The socialist principle, then, can be paraphrased as follows:

Work burdens should be distributed according to people's abilities, and benefits should be distributed according to people's needs.

This "socialist" principle is based first on the idea that people realize their human potential by exercising their abilities in productive work. Since the realization of one's full potentiality is a value, work should be distributed in such a way that a person can be as productive as possible, and this implies distributing work according to ability. Second, the benefits produced through work should be used to promote human happiness and well-being. And this means distributing them so that people's basic biological and health needs are met, and then using what is left over to meet people's other non-basic needs. Perhaps most fundamental to the socialist view is the notion that societies should be communities in which benefits and burdens are distributed on the model of a family. Just as able family members willingly support the family, and just as needy family members are willingly supported by the family, so also the able members of a society should contribute their abilities to society by taking up its burdens while the needy should be allowed to share in its benefits.

As the example of the family suggests, the principle of distribution according to need and ability is used within small groups as well as within larger society. In athletics, for example, the members of a team will distribute burdens according to each athlete's ability, and will tend to stand together and help each other according to each one's need. The principle of need and ability, however, is the principle that tends to be least acknowledged in business. Managers sometimes invoke the principle when they pass out the more difficult jobs among the members of a workgroup to those who are stronger and more able, but they often retreat when these workers complain that they are being given larger burdens without higher compensation. Managers also sometimes invoke the principle when they make special allowances for workers who seem to have special needs. (This was, in fact, a key consideration when Congress passed the Americans with Disabilities Act.) However, they rarely do so and they are often criticized for showing favoritism when they do this.

There is, nevertheless, something to be said for the socialist principle: Needs and abilities certainly should be taken into account when determining how benefits and burdens should be distributed among the members of a society or a group. Most people would agree, for example, that we should make a greater contribution to the lives of cotton mill workers with brown lung disease who have greater needs than to the lives of healthy persons who have all they need. Most people would also agree that individuals should be employed in occupations for which they are fitted and that this means matching each person's abilities to his or her job as far as possible. Vocational tests in high school and college, for example, are supposed to help students find careers that match their abilities.

However, the socialist principle has also had its critics. First, opponents have pointed out that under the socialist principle there would be no relation between the amount of effort a worker puts forth and the amount of remuneration one receives (since remuneration would depend on need, not on effort). Consequently, opponents conclude, workers would have no incentive to put forth any work efforts at all, knowing that they will receive the same whether they work hard or not. The result, it is claimed, will be a stagnating economy with a declining productivity (a claim, however, that does not seem to be borne out by the facts). Underlying this criticism is a deeper objection, namely that it is unrealistic to think that entire societies could be modeled on familial relationships. Human nature is essentially self-interested and competitive, the critics of socialism hold; and so, outside the family, people cannot be motivated by the fraternal willingness to share and help that is characteristic of families. Socialists have usually replied to this charge by arguing that human beings are trained to acquire the vices of selfishness and competitiveness by modern social and economic institutions that inculcate and encourage competitive and self-interested behavior, but that people do not have these vices by nature. By nature, humans are born into families where they instinctively value helping each other. If these instinctive and "natural" attitudes continued to be nurtured instead of being eradicated, humans would continue to value helping others even outside the family and would acquire the virtues of being cooperative, helpful, and selfless. The debate on what kinds of motivations human nature is subject to is still largely unsettled.

A second objection that opponents of the socialist principle have urged is that if the socialist principle were enforced, it would obliterate individual freedom. Under the socialist principle, the occupation each person entered would be determined by the person's abilities and not by his or her free choice. If a person has the ability to be a university teacher but wants to be a ditch-digger, the person will have to become a teacher. Similarly, under the socialist principle, the goods a person gets will be determined by the person's needs and not by his or her free choice. If a person needs a loaf of bread but wants a bottle of beer, he or she will have to take the loaf of bread. The sacrifice of freedom is even greater, the critics claim, when one considers that in a socialist society some central government agency has to decide what tasks should be matched to each person's abilities and what goods should be allotted to each person's needs. The decisions of this central agency will then have to be imposed on other persons at the expense of their freedom to choose for themselves. The socialist principle substitutes paternalism for freedom.

Justice as Freedom: Libertarianism

The last section discussed libertarian views on moral rights; libertarians also have some clear and related views on the nature of justice. The libertarian holds that no particular way of distributing goods can be said to be just or unjust apart from the free choices individuals make. Any distribution of benefits and burdens is just if it is the result of individuals freely choosing to exchange with each other the goods each person already owns. Robert Nozick, a leading libertarian, suggests this principle as the basic principle of distributive justice.

From each according to what he chooses to do, to each according to what he makes for himself (perhaps with the contracted aid of others) and what others choose to do for him and choose to give him of what they've been given previously (under this maxim) and haven't yet expended or transferred.

Or, quite simply, "From each as they choose, to each as they are chosen." For example, if I choose to write a novel or choose to carve a statue out of a piece of driftwood, then I should be allowed to keep the novel or the statue if I choose to keep it. Of, if I choose, I should be allowed to give them away to someone else or to exchange them for other objects with whomever I choose.

In general, people should be allowed to keep everything they make and everything they are freely given. Obviously, this means it would be wrong to tax one person (that is, take the person's money) in order to provide welfare benefits for someone else's needs.

Nozick's principle is based on the claim (which we have already discussed) that every person has a right to freedom from coercion that takes priority over all other rights and values. The only distribution that is just, according to Nozick, is one that results from free individual choices. Any distribution that results from an attempt to impose a certain pattern on society (for instance, imposing equality on everyone or taking from the have's and giving to the have-not's) will therefore be unjust.

We have already noted some of the problems associated with the libertarian position. The major difficulty is that the libertarian enshrines a certain value - freedom from the coercion of others-and sacrifices all other rights and values to it, without giving any persuasive reasons why this should be done. Opponents of the libertarian view argue that other forms of freedom must also be secured such as freedom from ignorance and freedom from hunger. These other forms of freedom in many cases override freedom from coercion. If a man is starving, for example, his right to be free from the constraints imposed by hunger is more important than the right of a satisfied man to be free of the constraint of being forced to share his surplus food. In order to secure these more important rights, society may impose a certain pattern of distribution, even if this means that in some cases some people will have to be coerced into conforming to the distribution. Those with surplus money, for example, may have to be taxed to provide for those who are starving.

A second related criticism of libertarianism claims that the libertarian principle of distributive justice will generate unjust treatment of the disadvantaged. Under the libertarian principle, a person's share of goods will depend wholly on what the person can produce through his or her own efforts or what others choose to give the person out of charity (or some other motive). Both of these sources may be unavailable to a person through no fault of the person. A person may be ill, handicapped, unable to obtain the tools or land needed to produce goods, too old or too young to work, or otherwise incapable of producing anything through his or her own efforts. And other people (perhaps out of greed) may refuse to provide that person with what he or she needs. According to the libertarian principle, such a person should get nothing. But this, say the critics of libertarianism, is surely mistaken. If people through no fault of their own happen to be unable to care for themselves, their survival should not depend on the outside chance that others will provide them with what they need. Each person's life is of value and consequently each person should be cared for, even if this means coercing others into distributing some of their surplus to the person.

Justice as Fairness: Rawls

These discussions have suggested several different considerations that should be taken into account in the distribution of society's benefits and burdens: political and economic equality, a minimum standard of living, needs, ability, effort, and freedom. What is needed, however, is a comprehensive theory capable of drawing these considerations together and fitting them together into a logical whole. John Rawls provides one approach to distributive justice that at least approximates this ideal of a comprehensive theory.

John Rawls's theory is based on the assumption that conflicts involving justice should be settled by first devising a fair method for choosing the principles by which the conflicts will be resolved. Once a fair method of choosing principles is devised, the principles we choose by using that method should serve us as our own principles of distributive justice.

Rawls proposes two basic principles that, he argues, we would select if we were to use a fair method of choosing principles to resolve our social conflicts. The principles of distributive justice that Rawls proposes can be paraphrased by saying that the distribution of benefits and burdens in a society is just if, and only if:

1. each person has an equal right to the most extensive basic liberties compatible with similar liberties for all, and
2. social and economic inequalities are arranged so that they are both a). to the greatest benefit of the least advantaged persons, and b). attached to offices and positions open to all under conditions of fair equality of opportunity.

Rawls tells us that principle 1 is supposed to take priority over principle 2 should the two of them ever come into conflict, and within principle 2, part b is supposed to take priority over part a.

Principle 1 is called the “principle of equal liberty.” Essentially it says that each citizen's liberties must be protected from invasion by others and must be equal to those of others. These basic liberties include the right to vote, freedom of speech and conscience and the other civil liberties, freedom to hold personal property, and freedom from arbitrary arrest If the principle of equal liberty is correct, then it implies that it is unjust for business institutions to invade the privacy of employees, to pressure managers to vote in certain ways, to exert undue influence on political processes by the use of bribes, or to otherwise violate the equal political liberties of society's members. According to Rawls, moreover, since our freedom to make contracts would diminish if we were afraid of being defrauded or were afraid that contracts would not be honored, the principle of equal liberty also prohibits the use of force, fraud, or deception in contractual transactions and requires that just contracts should be honored. If this is true, then contractual transactions with customers (including advertising) ought morally to be free of fraud, and employees have a moral obligation to render the services they have justly contracted to their employer.

Part a of principle 2 is the "difference principle." It assumes that a productive society will incorporate inequalities, but it then asserts that steps must be taken to improve the position of the most needy members of society such as the sick and the disabled unless such improvements would so burden society that they make everyone, including the needy, worse off than before. Rawls claims that the more productive a society is, the more benefits it will be able to provide for its least advantaged members. Since the difference principle obliges us to maximize benefits for the least advantaged, this means that business institutions should be as efficient in their use of resources as possible. If we assume that a market system such as ours is most efficient when it is most competitive, then the difference principle will in effect imply that markets should be competitive and that anticompetitive practices such as price fixing and monopolies are unjust. In addition, since pollution and other environmentally damaging "external effects" consume resources inefficiently, the difference principle also implies that it is wrong for firms to pollute.

Part b of principle 2 is the "principle of fair equality of opportunity." It says that everyone should be given an equal opportunity to qualify for the more privileged positions in society's institutions. This means not only that job qualifications should be related to the requirements of the job (thereby prohibiting racial and sexual discrimination), but that each person must have access to the training and education needed to qualify for the desirable jobs. A person's efforts, abilities, and contribution would then determine his or her remuneration.

The principles that Rawls proposes are quite comprehensive and bring together the main considerations stressed by the other approaches to justice that we have examined. However, Rawls not only provides us with a set of principles of justice, he also proposes a general method for evaluating in a fair way the adequacy of any moral principles. The method he proposes consists of determining what principles a group of rational self-interested persons would choose to live by if they knew they would live in a society governed by those principles but they did not yet know what each of them would turn out to be like in that society. We might ask, for example, whether such a group of rational self-interested persons would choose to live in a society governed by a principle that discriminates against blacks when none of them knows whether he or she will turn out to be a black person in that society. The answer, clearly, is that such a racist principle would be rejected and consequently, according to Rawls, the racist principle would be unjust. Thus, Rawls claims that a principle is a morally justified principle of justice if, and only if, the principle would be acceptable to a group of rational self-interested persons who know they will live in a society governed by the principles they accept but who do not know what sex, race, abilities, religion, interests, social position, income, or other particular characteristics each of them will possess in that future society.

Rawls refers to the situation of such an imaginary group of rational persons as the "original position," and he refers to their ignorance of any particulars about themselves as the "veil of ignorance." The purpose and effect of decreeing that the parties to the original position do not know what particular characteristics each of them will possess is to ensure that none of them can protect his or her own special interests. Because they are ignorant of their particular qualities, the parties to the original position are forced to be fair and impartial and to show no favoritism toward any special group: They must look after the good of all.

According to Rawls, the principles that the imaginary parties to the original position accept will ipso facto turn out to be morally justified. They will be morally justified because the original position incorporates the Kantian moral ideas of reversibility (the parties choose principles that will apply to themselves), of universalizability (the principles must apply equally to everyone), and of treating people as ends (each party has an equal say in the choice of principles). The principles are further justified, according to Rawls, because they are consistent with our deepest considered intuitions about justice. The principles chosen by the parties to the original position match most of the moral convictions we already have and where they do not, according to Rawls, we would be willing to change them to fit Rawls's principles once we reflect on his arguments.

Rawls goes on to claim that the parties to the original position would in fact choose his (Rawls's) principles of justice, that is, the principle of equal liberty, the difference principle, and the principle of fair equality of opportunity. The principle of equal liberty would be chosen because the parties will want to be free to pursue their major special interests whatever these might be. Since in the original position each person is ignorant of what special interests he or she will have, everyone will want to secure a maximum amount of freedom so that he or she can pursue whatever interests he or she has on entering society. The difference principle will be chosen because all parties will want to protect themselves against the possibility of ending in the worst position in society. By adopting the difference principle, the parties will ensure that even the position of the most needy is cared for. And the principle of fair equality of opportunity will be chosen, according to Rawls, because all parties to the original position will want to protect their interests should they turn out to be among the talented. The principle of fair equality of opportunity ensures that everyone has an equal opportunity to advance through the use of his or her own abilities, efforts, and contributions.

If Rawls is correct in claiming that the principles chosen by the parties to the original position are morally justified, and if he is correct in arguing that his own principles would be chosen by the parties to the original position, then it follows that his principles are in fact morally justified to serve as our own principles of justice. These principles would then constitute the proper principles of distributive justice.

Critics, however, have objected to various parts of Rawls's theory. Some have argued that the original position is not an adequate method for choosing moral principles. According to these critics, the mere fact that a set of principles is chosen by the hypothetical parties to the original position tells us nothing about whether the principles are morally justified. Other critics have argued that the parties to the original position would not choose Rawls's principles at all. Utilitarians, for example, have argued that the hypothetical parties to the original position would choose utilitarianism and not Rawls's principles. Still other critics have claimed that Rawls's principles are themselves mistaken. Rawls's principles, according to these critics, are opposed to our basic convictions concerning what justice is.

In spite of the many objections that have been raised against Rawls's theory, his defenders still claim that the advantages of the theory outweigh its defects. For one thing, they claim, the theory preserves the basic values that; have become embedded in our moral beliefs: freedom, equality of opportunity, and a concern for the disadvantaged. Second, the theory fits easily into the basic economic institutions of Western societies: It does not reject the market system, work incentives, nor the inequalities consequent on a division of labor. Instead, by requiring that inequalities work for the benefit of the least advantaged and by requiring equality of opportunity, the theory shows how the inequalities that attend the division of labor and free markets can be compensated for and thereby made just. Third, the theory incorporates both the communitarian and the individualistic strains that are intertwined in Western culture. The difference principle encourages the more talented to use their skills in ways that will rebound to the benefit of fellow citizens who are less well off, thereby encouraging a type of communitarian or "fraternal" concern. The principle of equal liberty leaves the individual free to pursue whatever special interests the individual may have. Fourth, Rawls's theory takes into account the criteria of need, ability, effort, and contribution. The difference principle distributes benefits in accordance with need, while the principle of fair equality of opportunity in effect distributes benefits and burdens according to ability and contribution. Fifth, the defenders of Rawls argue, there is the moral justification that the original position provides. The original position is defined so that its parties choose impartial principles that take into account the equal interests of everyone, and this, they claim, is the essence of morality.

Retributive Justice

Retributive justice concerns the justice of blaming or punishing persons for doing wrong. Philosophers have long debated the justification of blame and punishment, but we need not enter these debates here. More relevant to our purposes is the question of the conditions under which it is just to punish a person for doing wrong.

The first chapter discussed some major conditions under which a person could not be held morally responsible for what he or she did: ignorance and inability. These conditions are also relevant to determining the justice of punishing or blaming someone for doing wrong: If people do not know or freely choose what they are doing, then they cannot justly be punished or blamed for it. For example, if the cotton mill owners mentioned at the beginning of this section did not know that the conditions in their mills would cause brown lung disease, then it would be unjust to punish them when it turns out that their mills caused this disease.

A second kind of condition of just punishments is certitude that the person being punished actually did wrong. Many firms, for example, use more or less complex systems of "due process" that are intended to ascertain whether the conduct of employees was really such as to merit dismissal or some other penalty. Penalizing an employee on the basis of flimsy or incomplete evidence is rightly considered an injustice.

A third kind of condition of just punishments is that they must be consistent and proportioned to the wrong. Punishment is consistent only when everyone is given the same penalty for the same infraction; punishment is proportioned to the wrong when the penalty is no greater in magnitude than the harm that the wrongdoer inflicted. It is unjust, for example, for a manager to impose harsh penalties for minor infractions of rules, or to be lenient toward favorites but harsh toward all others. If the purpose of a punishment is to deter others from committing the same wrong or to prevent the wrongdoer from repeating the wrong, then punishment should not be greater than what is consistently necessary to achieve these aims.

Compensatory Justice

Compensatory justice concerns the justice of restoring to a person what the person lost when he or she was wronged by someone else. We generally hold that when one person wrongfully harms the interests of another person, the wrongdoer has a moral duty to provide some form of restitution to the person he or she wronged. If, for example, I destroy someone's property or injure him bodily, I will be held morally responsible for paying him damages.

There are no hard and fast rules for determining how much compensation a wrongdoer owes the victim. Justice seems to require that the wrongdoer as far as possible should restore whatever he or she took and this would usually mean that the amount of restitution should be equal to the loss the wrongdoer knowingly inflicted on the victim. However, some losses are impossible to measure. If I maliciously injure someone's reputation, for example, how much restitution should I make? Some losses, moreover, cannot be restored at all: How can the loss of life or the loss of sight be compensated? In cases such as the Ford Pinto case - where the injury is such that full restoration of the loss is not possible, we seem to hold that the wrongdoer should at least pay for the material damages the loss inflicts on the injured person and his or her immediate family. Traditional moralists have argued that a person has a moral obligation to compensate an injured party only if three conditions are present:

1. The action that inflicted the injury was wrong or negligent. For example, if by efficiently managing my firm 1 undersell my competitor and run her out of business, I am not morally bound to compensate her since such competition is neither wrongful nor negligent; but if I steal front my employer, then I owe him compensation, or if I fail to exercise due care in my driving, then I owe compensation to those whom I injure.

2. The person's action was the real cause of the injury. For example, if a banker loans a person money and the borrower then uses it to cheat others, the banker is not morally obligated to compensate the victims; but if the banker defrauds a customer, the customer must be compensated.

3. The person inflicted the injury voluntarily. For example, if I injure someone's property accidentally and without negligence, I am not morally obligated to compensate the person. (I may, however, be legally bound to do so depending on how the law chooses to distribute the social costs of injury.)

The most controversial forms of compensation undoubtedly are the "preferential treatment" programs that attempt to remedy past injustices against groups. If a racial group, for example, has been unjustly discriminated against for an extended period of time in the past and its members consequently now hold the lowest economic and social positions in society, does justice require that members of that group be compensated by being given special preference j in hiring, training, and promotion procedures? Or would such special treatment itself be a violation of justice by violating the principle of equal treatment? Does justice legitimize quotas even if this requires turning down more highly qualified non-minorities? These are complex and involved questions that we will not be able to answer at this point. We will return to them in a later chapter.

The Ethics of Care

At 8 p.m. on the night of December 11, 1995, an explosion near a boiler room rocked the Malden Mills factory in Lawrence, Massachusetts. Fires broke out in the century-old brick textile factory. Fanned by winds, the fires quickly gutted three factory buildings, injuring 25 workers, destroying nearly all of the plant, and putting nearly 1400 people out of work two weeks before Christmas.

Founded in 1906, Malden Mills, a family-owned company, was one of the few makers of textiles still operating in New England. Most other textile manufacturers had relocated to the south and then to Asia in their search for cheap nonunion labor. President and major owner of the company Aaron Feuerstein, however, had refused to abandon the community and its workers who, he said were "the most valuable asset that Malden Mills has, . . . not an expense that can be cut." Emerging from a brush with bankruptcy in 1982, Feuerstein had refocused the company on the pricier end of the textile market where state-of-the-art technology and high-quality goods are more important than low costs. Shunning low-margin commodity fabrics such as plain 'polyester sheets, the company focused on a new synthetic material labeled "Polartec" that company workers had discovered how to make through trial and error during the early 1980s. The new material was a fleecy, lightweight, warm material that could wick away perspiration and that required precise combinations of artificial yarns, raising and shaving the pile, and weaving at specially invented (and patented) machines operated at exactly the right temperature, humidity, and speed. Workers had to develop special skills to achieve the correct weave and quality. Soon recognizing Polartec as the highest quality and most technically advanced fabric available for performance outdoor clothing, Patagonia, L.L Bean, Eddie Bauer, Lands' End, North Face, Ralph Lauren, and other up-scale outfitters adopted the high-priced material. Polartec sales climbed from $5 million in 1982 to over $200 million by 1995. With additional revenues from high-quality upholstery fabrics, Malden Mills' revenues in 1995 had totaled $403 million, and its employees, who now numbered nearly 3200, were the highest paid in the country. Feuerstein, who frequently provided special help to workers with special needs, kept an open-door policy with workers.

The morning after the December fire, however, with the factory in smoldering ruins, newspapers predicted that owner Aaron Feuerstein would do the smart thing and collect over $100 million that insurers would owe him, sell off the remaining assets, then either shut down the company or rebuild in a Third World country where labor was cheaper. Instead, Feuerstein announced that the company would rebuild in Lawrence, and, in a move that confounded the industry, he promised that every employee forced out of work by the fire would continue to be paid full wages, would receive full medical benefits, and would be guaranteed a job when operations restarted in a few months. Rebuilding in Lawrence would cost over $300 million, while keeping 1400 laid-off workers on full salaries for a period of up to three months would cost an additional $20 million. "I have a responsibility to the worker, both blue-collar and white-collar," Feuerstein later said. "I have an equal responsibility to the community. It would have been unconscionable to put 3000 people on the streets and deliver a death blow to the cities of Lawrence and Methuen. Maybe on paper our company is [now] worth less to Wall Street, but I can tell you it's [really] worth more."

The Malden Mills incident suggests a perspective on ethics that is not adequately captured by the moral views we have so far examined. Consider that from a utilitarian perspective Feuerstein had no obligation to rebuild the factory in Lawrence nor to continue to pay his workers while they were not working. Moreover, relocating the operations of Malden Mills to a Third World country where labor is cheaper would not only have benefited the company, it would also have provided jobs for Third-World workers who are more desperately needy than American workers. From an impartial utilitarian perspective, then, more utility would have been produced by bringing jobs to Third World workers than by spending the money to preserve the jobs of current Malden Mills employees in Lawrence, Massachusetts. It is true that the Malden Mills workers were close to Feuerstein and that over the years they had remained loyal to him and had built a close relationship with him. However, from an impartial standpoint, the utilitarian would say, such personal relationships are irrelevant and should be set aside in favor of whatever maximizes utility.

A rights perspective would also not provide any support for the decision to remain in Lawrence nor to continue to pay workers full wages while the company rebuilt. Workers certainly could not claim to have a moral right to be paid while they were not working. Nor could workers claim to have a moral right to have a factory rebuilt for them. The impartial perspective of a rights theory, then, does not suggest that Feuerstein had any special obligations to his employees after the fire.

Nor, finally, could one argue that justice demanded that Feuerstein rebuild the factory and continue to pay workers while they were not working. Although workers were pivotal to the success of the company, the company had rewarded them by paying them very generous salaries over many years. Impartial justice does not seem to require that the company support people while they are not working nor does it seem to require that the company build a factory for them. In fact, if one is impartial, then it seems more just to move the factory to a Third World country where people are more needy, than to keep the jobs in the United States where people are relatively well off.

Partiality and Care

The approaches to ethics that we have seen, then, all assume that ethics should be impartial and that, consequently, any special relationships that one may have with particular individuals-such as relatives, friends, or one's employees-should be set aside when determining what one ought to do. Some utilitarians have claimed, in fact, that if a stranger and your parent were both drowning and you could save only one of them, and if saving the stranger would produce more utility than saving your parent (perhaps the stranger is a brilliant surgeon who would save many lives), then you would have a moral obligation to save the stranger and let your parent drown. Such a conclusion, many people have argued, is perverse and mistaken. In such a situation, the special relationship of love and caring that you have with your parents gives you a special obligation to care for them in a way that overrides obligations you may have toward strangers. Similarly, in the Malden Mills incident, Feuerstein had a special obligation to take care of his workers precisely because they were his workers and had built concrete relationships with him, helping him build his business and create the revolutionary new fabrics that gave Malden Mills its amazing competitive advantage in the textile industry. This obligation toward his own particular workers, who were to a large extent dependent on his company, it could be argued, overrode any obligations he may have had toward strangers in the Third World.

This view, that we have an obligation to exercise special care toward those particular persons with whom we have valuable close relationships, particularly relations of dependency, is a key concept in an "ethic of care," an approach to ethics that many feminist ethicists have recently advanced. We briefly discussed this approach to ethics in the first chapter when we noted the new approach to moral development worked out by psychologist Carol Gilligan. A morality of care "rests on an understanding of relationships as response to another in their terms." According to this "care" view of ethics, the moral task is not to follow universal and impartial moral principles, but, instead, to attend to and respond to the good of particular concrete persons with whom we are in a valuable and close relationship. Compassion, concern, love, friendship, and kindness are all sentiments or virtues which normally manifest this dimension of morality. Thus, an ethic of care emphasizes two moral demands:

1. We each exist in a web of relationships and should preserve and nurture those concrete and valuable relationships we have with specific persons.

2. We each should exercise special care for those with whom we are concretely related by attending to their particular needs, values, desires, and concrete wellbeing as seen from their own personal perspective, and by responding positively to these needs, values, desires, and concrete well-being, particularly of those who are vulnerable and dependent on our care.

Feuerstein's decision, for example, to remain in the community of Lawrence and to care for his workers by continuing to pay them after the fire was a response to the imperative of preserving the concrete relationships he had formed with his employees, and of exercising special care for the specific needs of these particular individuals who were economically dependent on him. This requirement to take care of this specific group of individuals is more significant than any moral requirement to care for strangers in Third World countries.

It is important not to restrict the notion of a concrete relationship to relationships between two individuals or to relationships between an individual and a specific group. The examples of relationships that we have given so far have been of this kind. Many advocates of an ethic of care have noted that an ethic of care should also encompass the larger systems of relationships that make up concrete communities. An ethic of care, therefore, can be seen as encompassing the kinds of obligations that a so-called "communitarian ethic" advocates. A communitarian ethic is an ethic that sees concrete communities and communal relationships as having a fundamental value that should be preserved and maintained. What is important in a communitarian ethic is not the isolated individual, but the community within which individuals discover who they are by seeing themselves as integral parts of a larger community with its traditions, culture, practices, and history. The concrete relationships that make up a particular community, then, should be preserved and nurtured just as much as the more interpersonal relationships that spring up between people.

What kind of argument can be given in support of an ethic of care? An ethic of care can be based on the claim that the identity of the self-who I am-is based on the relationships the self has with other selves: The individual cannot exist, cannot even be who he or she is, in isolation from caring relationships with others. I need others to feed and care for me when I am born; I need others to educate me and care for me as I grow; I need others as friends and lovers to care for me when I mature; and always I must live in a community on whose language, traditions, culture, and other benefits I depend and which come to define me. It is in these concrete relationships with others that I form my understanding of who and what I am. Therefore, to whatever extent the self has value, to that same extent the relationships that are necessary for the self to exist and be what it is must also have value and so should be maintained and nurtured. The value of the self, then, is ultimately derivative from the value of the community.

It is also important in this context to distinguish three different forms of "caring": caring about something, "caring after" someone, and caring for someone. The kind of caring demanded by an ethic of care is the kind expressed by the phrase "caring for someone." Ethicists have suggested that the paradigm example of "caring for" someone is the kind of caring that a mother extends toward her child. Such caring is focused on persons and their well-being, not on things; it does not seek to foster dependence, but nurtures the development of the person so that one becomes capable of making one's own choices and living one's own life; and it is not detached but is "engrossed" in the person and attempts to see the world through the eyes and values of the person. On the other hand, "caring about" something is the kind of concern and interest that one can have for things or ideas where there is no second person in whose subjective reality one becomes engrossed. Such caring for objects is not the kind of caring demanded by an ethics of care. One can also become busy taking care of people in a manner that looks after their needs but remains objective and distant from them as, for example, often happens in bureaucratic service institutions such as the post office or a social welfare office. Caring after people in this way, while often necessary, also is not the kind of caring demanded by an ethic of care.

Two additional issues are important to note. First, not all relationships have value and so not all would generate the duties of care. Relationships in which one person attempts to dominate, oppress, or harm another, relationships that are characterized by hatred, violence, disrespect and viciousness, and relationships that are characterized by injustice, exploitation, and harm to others lack the value that an ethic of care requires. An ethic of care does not obligate us to maintain and nurture such relationships. On the other hand, relationships that exhibit the virtues of compassion, concern, love, friendship, and loyalty do have the kind of value that an ethic of care requires and an ethic of care implies that such relationships should be maintained and nurtured.

Second, it is important to recognize that the demands of caring are sometimes in conflict with the demands of justice. Consider two examples. Suppose, first, that one of the employees whom a female manager supervises is a friend of hers. Suppose that one day she catches her friend stealing from the company. Should she turn in her friend as company policy requires or should she say nothing in order to protect her friend? Or suppose, second, that a female manager is supervising several people, one of whom is a close friend of hers. Suppose that she must recommend one of these subordinates for promotion to a particularly desirable position. Should she recommend her friend simply because she is her friend, or should she be impartial and follow company policy by recommending the subordinate who is most qualified even if this means passing over her friend? Clearly, in each of these cases, justice would require that the manager not favor her friend. The demands of an ethic of care would seem to require that the manager favor her friend for the sake of their friendship. How should conflicts of this sort be resolved?

Notice, to begin with, that there is no fixed rule that can resolve all such conflicts. One can imagine situations in which the manager's obligations of justice toward her company would clearly override the obligations she has toward her friend. (Imagine that her friend stole several million dollars and was prepared to steal several million more.) One can imagine situations in which the manager's obligations toward her friend override her obligations toward the company. (Imagine, for example, that what her friend stole was insignificant, that her friend desperately needed what she stole, and that the company would react by imposing an excessively harsh punishment on the friend.)

But although no fixed rule can resolve all conflicts between the demands of caring and the requirements of justice, nevertheless, some guidelines can be helpful in resolving such conflicts. Consider that when the manager was hired, she voluntarily agreed to accept the position of manager along with the duties and privileges that would define her role as a manager. Among the duties she promised to carry out is the duty to protect the resources of the company and to abide by company policy. The manager, therefore, betrays her relationships with the people to whom she made these promises if she now shows favoritism toward her friend in violation of the company policies she voluntarily agreed to uphold. The institutional obligations we voluntary accept and to which we voluntarily commit ourselves, then, can require that we be impartial toward our friends and that we pay more attention to the demands of impartial justice than to the demands of an ethic of care. What about situations in which there is a conflict between our institutional obligations and the demands of a relationship, and the relationship is so important to us that we feel we must favor the relationship over our institutional obligations? Then morality would seem to require that we relinquish the institutional role that we have voluntarily accepted. Thus, the manager who feels that she must favor her friend and that she cannot be impartial as she voluntarily agreed to be when she accepted her job, must resign her job. Otherwise, the manager is in effect living a lie: By keeping her job while favoring her friend, she would on the one hand imply that she was living up to her voluntary agreement of impartiality, when in fact she was not being impartial toward her friend.

It was noted that the care approach to ethics has been developed primarily by feminist ethicists. The care approach, in fact, originated in the claim of psychologist Carol Gilligan that women and men approach moral issues from two different perspectives: While men approach moral issues from an individualistic focus on rights and justice, women approach moral issues from a non-individualistic focus on relationships and caring. Empirical research, however, has shown that this claim is, for the most part, mistaken, although there are some differences evident in the way that men and women respond to moral dilemmas. Most ethicists have abandoned the view that an ethic of care is for women only, and have argued, instead, that just as women must recognize the demands of justice and impartiality, so men must recognize the demands of caring and partiality. Caring is not the task of women, but a moral imperative for both men and women.

Objections to Care

The care approach to ethics has been criticized on several grounds. First, it has been claimed that an ethic of care can degenerate into unjust favoritism. Being partial, for example, to members of one's own ethnic group, to a sexist "old boy" network, to members of one's own race, or to members of one's own nation, can all be unjust forms of partiality. Proponents of an ethic of care, however, can respond that although the demands of partiality can conflict with other demands of morality, this is true of all approaches to ethics. Morality consists of a wide spectrum of moral considerations that can conflict with each other: Utilitarian considerations can conflict with considerations of justice, and these can conflict with moral rights. In the same way, the demands of partiality and caring can also conflict with the demands of utility, justice, and rights. What morality requires is not that we get rid of all moral conflicts, but that we learn to weigh moral considerations and to balance their different demands in specific situations. The fact that caring can sometimes conflict with justice, then, does not make an ethic of caring less adequate than any other approach to ethics, but simply points out the need to weigh and balance the relative importance of caring versus justice in specific situations.

A second important criticism of an ethic of care is that its demands can lead to "burnout." In demanding that people exercise caring for children, parents, siblings, spouses, lovers, friends, and other members of the community, an ethic of care seems to demand that people sacrifice their own needs and desires to care for the well-being of others. However, proponents of caring can respond that an adequate view of caring will balance caring for the caregiver with caring for others.

The advantage of an ethic of care is that it forces us to focus on the moral value of being partial toward those concrete persons with whom we have special and valuable relationships, and the moral importance of responding to such persons as particular individuals with characteristics that demand a response to them that we do not extend to others. In these respects, an ethic of care provides an important corrective to the other approaches to ethics that we have examined which all emphasize impartiality and universality. An ethic of care, with its focus on partiality and particularity, is an important reminder of an aspect of morality that cannot be ignored.

Rich Dead, Poor Dead
[Adapted from a column by Joan Ryan]
San Francisco Chronicle
Sunday, January 27, 2002

In the aftermath of the World Trade Center attacks, Congress established the September 11th Victim Compensation Fund as part of the government's $15 billion bailout of the airlines. To be eligible for benefits, survivors of the victims must agree not to bring wrongful death suits against the airlines.

Kenneth Feinberg, the special master of the fund, tried to establish a means for distributing the money that would be fair to all. His goal was to ensure that dependents wouldn't suffer financially from the loss of the victim's income. So in Feinberg's matrix, beneficiaries are awarded varying amounts depending on age, income level and number of dependents. (You can find his matrix at the fund's website: www.usdoj.gov/victimcompensation.) Thus, a 45-year-old victim who earned $225,000 a year and had two children is valued at about $2.5 million. But a 45-year-old victim with two children who earned $45,000 a year is worth $905,063. Or, let's say the 45-year-old victim with the $225,000 salary had no children or other dependents. According to the matrix, his or her spouse would get $2, 460,133 – more than twice as much as the $45,000-a-year victim who left behind two children to support. Not surprisingly, the model, while praised by accountants and mathematicians, hasn't gone over as well with many of the victims' families. They object not only to the unequal division of money but also to the deductions that Feinberg factored into the formula. Payouts from a victim's life insurance, for example, are subtracted from the award. So if one couple paid premiums every month as an investment in their future, the amount of the insurance payout would be deducted from their award. But another couple who "self-insured" by investing in property or the stock market would not be similarly docked.

Pension funds also reduce the award. Again, beneficiaries of the person who saved through a 401(k) or IRA would get less than those of someone who didn't save at all or who put his savings into a regular bank account or real estate.

"This is a simplistic model," said one critic. "A high-income bond trader could have lost his/her job while a lower-income service worker might have . . . acquired a high-paying job. Since these eventualities are unknowable, I think the victims' families should be compensated equally."

Feinberg argues that when juries are asked in wrongful death suits to compensate families for loss of income, rich people routinely get more than poor people. But we're not talking about compensation from a private corporation. This is from a government under which all men are created equal. I think Feinberg has come up with a brilliant matrix but a flawed solution. We should look at the victims' fund like an award in a class-action suit. In many class-action suits, the money is divided equally among the plaintiffs. If this fund were divided equally, each victim's beneficiaries would get about $1. 6 million -- enough for most people to live on for the rest of their lives.

The drawback is that some families would pass on the federal money and sue the airlines in hopes of a larger award -- which would defeat Congress's purpose of creating the fund. So I understand why Feinberg's formula works as it does. But it's wrong.

If we didn't offer our sympathy on a sliding scale, why should we do so with our money?

_________________

Do you agree with Feinberg’s criteria for dividing the fund among claimants?

If so, why?

If not why not? What alternative criteria do you believe would be appropriate? Why?

Kelo vs. City of New London

Justice and Fairness: Due Process, Private Property and Public takings

[This exercise draws upon the facts in Kelo, et al. vs. City of New London, 125 U.S. Ct. 2655 (2005). It raises issues surrounding the exercise by a government of eminent domain power to force owners of private property to sell their land against their will. After we have discussed the questions at the end of this scenario, you will receive an edited version of the court’s majority opinion.]

The city of New London sits at the junction of the Thames River and the Long Island Sound in southeastern Connecticut. Decades of economic decline led a state agency in 1990 to designate the City a "distressed municipality." In 1996, the Federal Government closed the Naval Undersea Warfare Center, which had been located in the Fort Trumbull area of the City and had employed over 1,500 people. In 1998, the City's unemployment rate was nearly double that of the State, and its population of just under 24,000 residents was at its lowest since 1920.

These conditions prompted state and local officials to target New London, and particularly its Fort Trumbull area, for economic revitalization. To this end, New London Development Corporation (NLDC), a private nonprofit entity established some years earlier to assist the City in planning economic development, was reactivated.

In February 1998, the pharmaceutical company Pfizer Inc. announced that it would build a $300 million research facility on a site immediately adjacent to Fort Trumbull; local planners hoped that Pfizer would draw new business to the area, thereby serving as a catalyst to the area's rejuvenation.

In 2000, the city of New London devised a development plan that projected “… to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas." In assembling the land needed for this project, the city's development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation.

The development plan called for a waterfront conference hotel at the center of a "small urban village" that would include restaurants and shopping. It would also have marinas for both recreational and commercial uses and a pedestrian "riverwalk" originating there and continuing down the coast, connecting the waterfront areas of the development. There would be approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park, as well as space reserved for a new U. S. Coast Guard Museum. Additional features included 90,000 square feet of research and development office space immediately north of the Pfizer facility as well as other office and retail space, parking, and water-dependent commercial uses.

Overall, the NLDC intended the development plan to capitalize on the arrival of the Pfizer facility and the new commerce it was expected to attract. In addition to creating jobs, generating tax revenue, and helping to "build momentum for the revitalization of downtown New London," the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.

The city council authorized the NLDC to purchase property or to acquire property by exercising eminent domain in the City's name. The NLDC successfully negotiated the purchase of most of the real estate in the 90-acre area, but its negotiations with some property owners failed. As a consequence, in November 2000, the NLDC initiated condemnation proceedings to force the unwilling property owners to sell. This attempt to make the property owners sell when they did not want to give up their land resulted in a lawsuit that went all the way to the United States Supreme Court.

Susette Kelo had lived in the Fort Trumbull area since 1997. She had made extensive improvements to her house, which she prized for its water view. Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband Charles has lived in the house since they married some 60 years ago. In all, the nine plaintiffs, who refused to sell their property, owned 15 properties in Fort Trumbull. Ten of the parcels were occupied by the owner or a family member; the other five are held as investment properties. There is no claim by the NLDC that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.

In December 2000, plaintiffs filed a lawsuit against the City and the NLDCL. They claimed, among other things, that the taking of their properties would violate the "public use" restriction in the Fifth Amendment, because a large part of the project would be carried out by private parties for the benefit of those private parties

Do you believe that Susette Kelo should be compelled to sell her house to NLDC, provided that she receives fair compensation? Why or why not?

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[ 1 ]. Eminent Domain refers to a government’s power to require private property owners to give up their land, provided it’s for a proper public purpose and the government pays the fair market value. If the property owner and the government can not agree on the fair market value, or the property owner otherwise challenges the attempt to force a sale, the property owner has the right to a legal proceeding before a neutral third party, i.e., the appropriate state or federal court. Governments at all levels in the United States, federal, state and local, have this power – subject to the private property owner’s legal right to challenge its exercise.
[ 2 ]. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process, of law; nor shall private property be taken for public use, without just compensation." (Emphasis added.)