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Two Wrongs? Correcting Professor Lazarus's Misunderstanding of the Public Trust Doctrine

9 Pages Posted: 20 Feb 2016 Last revised: 17 Sep 2016

Michael C. Blumm

Lewis & Clark Law School

Date Written: July 23, 2016

Abstract

This paper responds to Professor Richard Lazarus's recent and longstanding criticisms of the public trust doctrine (PTD). I claim Richard misunderstands the non-absolutist nature of the doctrine, which seeks accommodation between public and private property. Although he acknowledges the value of the PTD as a defense to claims of private takings, he thinks that the "background principles" defense it affords government regulators is a static doctrine. And he fails to see that the PTD hardly equips courts with the authority to displace legislative and administrative decision makers. Instead, as epitomized in the well-known Mono Lake decision, the doctrine -- an inherent limit on all sovereigns -- requires those more representative branches to exercise their discretion in protecting trust resources from destruction or monopolization.

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

JEL Classification: D78, H41, K11, K32, L12, N5, Q2, R52

Suggested Citation

Blumm, Michael C., Two Wrongs? Correcting Professor Lazarus's Misunderstanding of the Public Trust Doctrine (July 23, 2016). Environmental Law, Vol. 46, No. 3, 2016. Available at SSRN: https://ssrn.com/abstract=2735147 or http://dx.doi.org/10.2139/ssrn.2735147

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)

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