The Public Trust Doctrine as an Interpretive Canon
45 U.C. Davis L. Rev. 693 (2012)
48 Pages Posted: 23 May 2012
Date Written: May 22, 2012
In this article Professor Araiza considers the argument for understanding an expanded version of the public trust doctrine as an interpretive canon. He argues that a canon-based understanding fits both the doctrine’s foundational importance in American law and its uncertain doctrinal grounding. These characteristics have led scholars to advocate a canon approach for other foundational, but ambiguously-based, legal rules; Professor Araiza suggests that an analogous analysis might support a similar approach to the public trust concept.
The article then applies the canon approach. It explains how a canon would operate as a preliminary matter, and then considers the canon’s proper scope and concrete implementation. It then considers and answers objections to the canon approach, ultimately concluding that none of them defeats the basic thrust of the argument. The article concludes by suggesting that the canon approach accurately reflects the fundamental meaning of the public trust canon, as an instantiation of the foundational, but incompletely-enforced, public law principle that government regulate in pursuit of the public interest.
Keywords: public trust doctrine, interpretive canons, natural resources
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