Fish Out of Water: The Public Trust Doctrine in a Constitutional Democracy

Abstract

This Article explores various theoretical explanations for the public trust doctrine. The author rejects trust law as unworkable and constitutional law as historically unrelated. The author also rejects explanations rooted in judicial review theory and the police power. The author’s conclusion is that the public trust doctrine is best understood, both historically and theoretically, as an aspect of property law, and that much of the modern public trust case law cannot be justified on the basis of this understanding of the doctrine. The author further concludes that the modern case law is incompatible with the basic values of a constitutional democracy.