Charles Reich, who died Saturday at 91, had a brief run in popular culture as author of “The Greening of America,” the bestseller that endeavored to sell the 1968 outlook to middle-class readers as the coming thing (“Consciousness III”). His reputation was to prove much more durable in the world of law, where as a young professor he penned what was to become the most cited Yale Law Journal article ever: “The New Property,” published in 1964. In it, Reich argued that courts should treat welfare benefits, public employment, and government contracts and licenses as types of property to which current holders were presumptively entitled, at least absent some sort of formalized adversary process. The phrase “new property” invited a comparison to plain-old-property in such forms as real estate, of the rights to which the courts were (with Reich’s approval) becoming less solicitous over this same period, as in 1978’s Penn Central Transportation v. New York City, which authorized the government to take development rights without compensation.
I’ve written over the years about both sides of Reich’s work. In Schools for Misrule (2011) I explored his durably influential 1964 article at some length as an example of academic thinking that indisputably helped to shape real-world jurisprudence. Part of its ingenuity was in couching in seemingly sober and cautious terms an idea whose implications (especially welfare rights) were otherwise controversial, so as to appeal to moderates and also to the sorts of thinkers who would soon be termed libertarian. (The New York Times, in its obituary, says that “The New Property” article “defended an individual’s right to privacy and autonomy against government prerogative,” which sounds either Cato-ish or positively anodyne.) As I put it:
Many of the social problems Reich discussed were in the air, so to speak, in the early 1960s. In applauding “individualism,” in raising doubts about the “magnification of government power” and the “dependence” it might instill in recipients, Reich might even have been seen as working in a vein similar to that of Milton Friedman, who had just two years earlier (in 1962) been in the public eye with his book Capitalism and Freedom. In one of the most celebrated chapters of that book, Friedman had detailed at length the abuses of occupational licensure and proposed its abolition. And as part of his longtime interest in “negative income tax” proposals, Friedman too criticized some paternalistic and intrusive social-welfare rules that were aimed in part at monitoring and uplifting recipients’ way of life.
Reich’s idea of making it easier to sue over license denial might come across as a less-drastic alternative to Friedman’s idea of doing away with professional and occupational boards. And you might argue that by advancing the concept of a right to welfare, Reich was echoing Friedman’s critique of welfare bureaucracy. In short, so long as you didn’t examine matters too closely, Reich and Friedman might almost come off as co-thinkers in seeking to constrain the size and power of government….
The Supreme Court’s speedy adoption of the “new property” idea in the years that followed became the stuff of law-school legend.
Later experience showed, I believe, that the two scholars were by no means on the same track: making it easier to sue over license revocation isn’t much like recognizing freedom to engage in an occupation, and restricting welfare agencies from cutting off benefits they believe to have been fraudulently obtained isn’t very much like what a negative income tax (or universal basic income) tries to do. Reich’s remedies did not really operate to curtail big government, while they did advance the power and role within it of lawyers and those comfortable with legal process. In that way too, Reich outran his peers at capturing the spirit of his era.