Download this Paper Open PDF in Browser

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

University of California Davis Law Review, Vol. 44, 2012

Lewis & Clark Law School Legal Studies Research Paper No. 2011-12

71 Pages Posted: 23 Apr 2011 Last revised: 17 Feb 2012

Michael C. Blumm

Lewis & Clark Law School

Rachel D. Guthrie

The Justis Law Firm LLC

Date Written: April 20, 2011

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.

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

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: https://ssrn.com/abstract=1816628

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

The Justis Law Firm LLC ( email )

10955 Lowell Ave.
Suite 520
Overland Park, KS 66210
United States
913-955-3713 (Phone)
913-998-3712 (Fax)

HOME PAGE: http://www.justislawfirm.com

Paper statistics

Downloads
393
Rank
61,843
Abstract Views
2,220