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Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision


Michael C. Blumm


Lewis & Clark Law School

Rachel D. Guthrie


Stinson Morrison Hecker LLP; Lewis & Clark Law School

April 20, 2011

University of California Davis Law Review, Vol. 44, 2012
Lewis & Clark Law School Legal Studies Research Paper No. 2011-12

Abstract:     
The public trust doctrine, an ancient doctrine emanating from Roman law and inherited from England by the American states, has been extended in recent years beyond its traditional role in protecting public uses of navigable waters to include new resources like groundwater and for new purposes like preserving ecological function. But those state-law developments, coming slowly and haphazardly, have failed to fulfill the vision that Professor Joseph Sax sketched in his landmark article of forty years ago. However, in the last two decades, several countries in South Asia, Africa, and the Western Hemisphere have discovered that the public trust doctrine is fundamental to their jurisprudence, due to natural law or to constitutional or statutory interpretation. In these dozen countries, the doctrine is likely to supply environmental protection for all natural resources, not just public access to navigable waters. This international public trust case law also incorporates principles of precaution, sustainable development, and intergenerational equity; accords plaintiffs liberalized public standing; and reflects a judicial willingness to oversee complex remedies. These developments make the non-U.S. public trust case law a much better reflection than U.S. case law of Professor Sax’s vision of the doctrine.

Number of Pages in PDF File: 71

Keywords: public trust doctrine, environmental law, natural resources law, public property law

JEL Classification: H41, H82, K11, K32, K33, N55, N56, N57, Q15, Q22, Q23, Q24, Q25, Q26, Q28, Q38, Q48

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Date posted: April 23, 2011 ; Last revised: February 17, 2012

Suggested Citation

Blumm, Michael C. and Guthrie, Rachel D., Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision (April 20, 2011). University of California Davis Law Review, Vol. 44, 2012; Lewis & Clark Law School Legal Studies Research Paper No. 2011-12. Available at SSRN: http://ssrn.com/abstract=1816628

Contact Information

Michael C. Blumm (Contact Author)
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)
Rachel D. Guthrie
Stinson Morrison Hecker LLP ( email )
1201 Walnut Street
Suite 2900
Kansas City, MO 64106
United States
816.842.8600 (Phone)
816.691.3495 (Fax)
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
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