Speaking of inconvenient truths -- a history of the public trust doctrine

Abstract

In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine.The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine's Roman, English and early American roots.In a nutshell, the generally accepted history is that from Justinian's Institutes through Magna Carta and Bracton, Hale and Blackstone reporting on English law, and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access to and use of resources important to the public welfare.Arnold v. Mundy, Martin v. Waddell and Illinois Central Railroad v. Illinois are cited repeatedly as precedent for present day recognition of a doctrine that will limit the authority of the state to alienate resources while imposing constraints on governmental and private use of those resources.As propounded by Professor Sax and the many adherents to his argument, an expansive public trust doctrine will restore the wisdom of antiquity while serving as a powerful tool for the protection and preservation of natural resources and the environment.The only problem with these ambitions for the public trust doctrine is that they rely on a mythological history of the doctrine.There was nothing resembling the modern idea of public trust in Roman law and the claimed restraint on alienation of state owned waters and lands is belied by a history of pervasive private ownership

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