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56 Brook. L. Rev. 731 (1990-1991)
Beyond the New Property: An Ecological View of Due Process

handle is hein.journals/brklr56 and id is 741 raw text is: BEYOND THE NEW PROPERTY: AN ECOLOGICAL VIEW OF DUE PROCESS Charles A. Reich* We live in a society where the economic security of the indi- vidual is constantly threatened by outside forces. Illness, acci- dent, inflation or recession may wipe out an individual's re- sources. Remote actions by government or corporate management, wholly beyond the individual's control, can leave a person destitute. Often the victims are children, often the aged, but any individual can be destroyed in this way. The question is: how much responsibility should the community take for the pro- tection of the individual? The community must choose among three responses. It can deny social responsibility entirely. It can make economic protec- tion of the individual a goal, but balance this goal against other goals which may be given an equal or higher priority. Or the community can make individual security an absolute right. Goldberg v. Kelly1 took the middle ground. It was a modest, moderate decision giving procedural protection to welfare recipi- ents. Goldberg v. Kelly was only a beginning, but it deserves rec- ognition as a landmark in the evolution of social justice. Twenty years later, we must confront the fact that the road opened by Goldberg v. Kelly has not been taken. Instead there has been retreat. The goal of individual economic protection has been weakened, subordinated to other goals, and viewed nega- tively by powerful elements in society. In Mathews v. Eldridge,2 the Supreme Court limited the Goldberg v. Kelly principle by holding that an evidentiary hearing was not required prior to the termination of disability benefits. The Court reached this result by a balancing test in which what the Court described as the private interest was weighed against the Government's inter- est, including the function involved and the fiscal and adminis- * Marshall P. Madison Visiting Professor of Law, University of San Francisco School of Law. 1 397 U.S. 254 (1970). 424 U.S. 319 (1976).

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