Two Wrongs? Correcting Professor Lazarus's Misunderstanding of the Public Trust Doctrine
9 Pages Posted: 20 Feb 2016 Last revised: 17 Sep 2016
Date Written: July 23, 2016
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: Suggested Citation