Liberty, the New Property, and Environmental Law

15 Pages Posted: 6 Dec 2005

See all articles by Michael C. Blumm

Michael C. Blumm

Lewis & Clark College - Lewis & Clark Law School; Lewis & Clark College Paul L Boley Library


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.

Keywords: property, environmental law, legal history

JEL Classification: K11, K32

Suggested Citation

Blumm, Michael C., Liberty, the New Property, and Environmental Law. University of San Francisco Law Review, Vol. 24, No. 2, Winter 1990, Available at SSRN:

Michael C. Blumm (Contact Author)

Lewis & Clark College - Lewis & Clark Law School ( email )

10101 S. Terwilliger Boulevard
Portland, 97219-7762

Lewis & Clark College Paul L Boley Library ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)

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