The Public Trust Doctrine Fifty Years after Sax and Some Thoughts on its Future

44 Public Land & Resources Law Review 1 (2021)

52 Pages Posted: 21 Apr 2020 Last revised: 21 Sep 2020

See all articles by Michael C. Blumm

Michael C. Blumm

Lewis & Clark Law School

Zach Schwartz

affiliation not provided to SSRN

Date Written: April 3, 2020

Abstract

The public trust doctrine was resurrected by Professor Joe Sax in a famous article a half-century ago. Sax explored the doctrine's history and maintained that it had contemporary significance at the time of the dawn of the modern environmental movement in 1970. Sax thought that the historic use of the doctrine to prevent monopoly use of important waterways could be expanded to meet the felt necessities of the times by protecting important natural resources from unwise or unsustainable depletion for public use, including use by future generations. Sax's vision ignited a substantial expansion in the scope and purposes of the doctrine over the past 50 years. Some of the most surprising developments have occurred internationally, which Sax's article did not expressly anticipate.

This analysis, written on the 50th anniversary of Sax's article, examines the public trust doctrine both before and after the article, revealing the considerable effect it has had on courts and legislatures. In addition to suggesting the great debt public trust scholars and the public at large owe to Sax's prescience, the article hazards some predictions about the likely evolution of the doctrine in the future.

Keywords: public trust doctrine, legal history, natural resources law, environmental law, water law

JEL Classification: K11, K23, K32, Q22, Q24, Q25, Q28, Q54

Suggested Citation

Blumm, Michael C. and Schwartz, Zach, The Public Trust Doctrine Fifty Years after Sax and Some Thoughts on its Future (April 3, 2020). 44 Public Land & Resources Law Review 1 (2021), Available at SSRN: https://ssrn.com/abstract=3567536 or http://dx.doi.org/10.2139/ssrn.3567536

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)

Zach Schwartz

affiliation not provided to SSRN

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