Public Trust Distrust

This Comment reviews the theoretical underpinnings of the public trust, a doctrine originating in Roman common Jaw and now constitutionalized by many states, and explores its contentious reception by green legal theorists.

Since Professor Joseph Sax’s revival of the doctrine as a vehicle for environmental legal advocacy in the early 1970s, it has been hatled by many ·as the most powerful tool available for protecting natural resource commons and attacked by others who argue that use of the property rights-based doctrine will rectify an ownership approach to natural resources and obstruct the development of more stewardship-oriented legal theories of natural resource management. Discussion focuses on the work of Professor Sax, representing the public trust advocates, and Professor Richard Lazarus, representing the green dissent.

The Comment concludes that the green dissent may elide the theoretical growth of the modern constitutionalized version of the doctrine beyond its common Jaw roots.