Liberty, the New Property, and Environmental Law

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University of San Francisco Law Review

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U.S.F. L. Rev.


This essay, written for a symposium commemorating the 25th anniversary of the publication of Charles Reich's famous article, "The New Property", maintains that the 1964 article, which argued for procedural protection for government benefits like social security and unemployment compensation, was a harbinger of environmental rights that would be created in the following decade. Calling for "scrupulous observance of fair procedures", Professor Reich anticipated the procedural regularity that courts would insist from agencies under the National Environmental Policy Act and pollution control statutes. The essay claims that underlying the process rights accorded both those with "new property" and environmental concerns was a liberty concern, which helps explain the ensuing close judicial scrutiny. The similarities between new property rights and environmental rights is hardly accidental, since allocating rights to use the environmental commons is an archetypical case of dispensing governmental largess. The participatory rights recognized in both contexts assures access to decisionmakers which may produce informed dialogue, more democratic decisionmaking, and changed visions of the public interest.

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