The Public Trust Doctrine: What a Tall Tale They Tell

Despite continuing hostility towards the public trust doctrine because of its potential to defeat private property rights and the will of elected representatives, the doctrine refuses to die. It continues to assure public access to and protection of certain natural resources of communal value; in fact, the doctrine\u27s geographic reach and the activities it protects have expanded beyond its original conception. It is this doctrinal accretion that has drawn the attention of Professor James Huffman, who in a recent article criticizes the ambitions of public trust scholars who see in an expansive public trust doctrine . . . a powerful tool for the protection and preservation of natural resources and the environment because, among other failings, they rely on a mythological history of the doctrine. This essay is intended as a response to Professor Huffman\u27s critique. Professor Huffinan\u27s critical assessment of the alleged mythological history of the public trust doctrine is beside the point. Indeed, as he suggests, he is tilting at windmills in trying to set the story straight. The story he criticizes has become a fact in the minds of judges who use it to justify a particular application of the doctrine. Retelling the story to prevent future applications of the doctrine could destabilize property law, which has embraced the doctrine for centuries. Even if the doctrine is a myth invented by legal scholars and judges, the legal fiction doctrine, which Professor Huffman\u27s argument implicates, justifies it. Indeed, this essay argues that the public trust doctrine is a good legal fiction because it enables new uses of the doctrine to perform a gap-filling function in the absence of positive law and, therefore, that it deserves to continue unchallenged. Because much has been written on the topic of the public trust doctrine, part II of the essay very briefly describes the doctrine\u27s origins, its major features, and its most common uses. Part III sets out Professor Huffman\u27s critique of the doctrine\u27s origins and poses as a rejoinder the legal fiction doctrine, which justifies the use of fictions in similar situations. Part IV of the essay looks specifically at the Exclusive Economic Zone (EEZ), where numbers of wild fish are in a free fall because there is no coherent, comprehensive program to regulate activities in the area. This part of the essay also discusses the phenomenon of a regulatory commons, which, according to Professor William Buzbee, arises when there is not a matching political-legal regime, leaving the underlying social ill unattended. The essay suggests that the public trust doctrine can fill the regulatory gap on the EEZ by offering an interim management regime with protective normative standards and other management tools, and thus end the stasis created by the regulatory commons that has left the EEZ\u27s resources unprotected. By highlighting the underlying social ill, application of the doctrine may actually encourage the enactment of positive law that can displace the stop gap common law regime and bring more regulatory certainty and uniformity to the area. The essay closes by asserting that, for these reasons, the public trust doctrine is a good legal fiction. Not only is the doctrine doing no harm, but its potential expansion could fill gaps in positive law and offer much needed protection for vulnerable resources of communal value. Therefore, Professor Huffman\u27s cavil against further expansion of the doctrine because of its mythic origins deserves no more attention than it has been given here

Fiduciaries With Conflicting Obligations

This Article examines the dilemma of a fiduciary acting for parties who, as among themselves, have conflicting commercial interests - an inquiry fundamentally different from that of the traditional study of conflicts between fiduciaries and their beneficiaries. Existing legal principles do not fully capture this dilemma because agency law focuses primarily on an agent’s duty to a given principal, not on conflicts among principals; trust law focuses primarily on gratuitous transfers; and commercial law generally addresses arm’s length, not fiduciary, relationships. The dilemma has become critically important, however, as defaults increase in the multitude of conflicting securities (e.g., classes of securities of the same issuer having different priorities or sources of payment) that are typical of modern finance. A fiduciary, such as a trustee, acting for investors in these securities faces the difficult task of trying to understand and balance the respective obligations owed to conflicting classes and the risk of being sued no matter how the balancing is performed

Mobilizing European law

The literature on European legal mobilization asks why individuals, groups and companies go to court and explores the impact of litigation on policy, institutions and the balance of power among actors. Surveying the literature we find that legal mobilization efforts vary across policy areas and jurisdictions. This article introduces a three-level theoretical framework that organizes research on the causes of these variations: macro-level systemic factors that originate in Europe; meso-level factors that vary nationally; and micro-level factors that characterize the actors engaged in (or disengaged from) litigation. We argue that until we understand more about how and why different parties mobilize law, it is difficult to respond to normative questions about whether European legal mobilization is a positive or negative development for democracy and rights.This work was supported by the University College London Global Engagement Strategy Leadership Fund; the UK Economic and Social Research Council [grant number ES/K008153/1]

What’s in a Convention? Process and substance in the project of European constitution-building. IHS Political Science Series: 2003, No. 89

The paper studies aspects of the process and substance of the deliberations of the Convention on the Future of the Union, against the backdrop of the longer term development of a Constitution for the European Union. It examines some of the issues which have arisen over the course of the longer term debate about European constitutionalism, including the normative basis of a putative Constitution for the EU. In the main part of the paper, the primary objective is to elaborate in more detail the ways in which the Convention’s work was structured by the complex procedural and substantive heritage of the Union’s constitutional acquis. It focuses on the Convention as an addition to an already complex and multi-facetted constitution-building process, and looks at some of the principles which it has proposed to bring into the constitutional architecture, such as the explicit articulation of the supremacy principle. It concludes that at times the fit between the ‘old’ and the ‘new’ in the constitutional process and substance developed by the Convention is far from satisfactory

Analyzing Avoidance: Judicial Strategy in Comparative Perspective

Courts sometimes avoid deciding contentious issues. One prominent justification for this practice is that, by employing avoidance strategically, a court can postpone reaching decisions that might threaten its institutional viability. Avoidance creates delay, which can allow for productive dialogue with and among the political branches. That dialogue, in turn, may result in the democratic resolution of—or the evolution of popular societal consensus around—a contested question, relieving the court of its duty. Many scholars and judges assume that, by creating and deferring to this dialogue, a court can safeguard its institutional legitimacy and security. Accepting this assumption arguendo, this Article seeks to evaluate avoidance as it relates to dialogue. It identifies two key factors in the avoidance decision that might affect dialogue with the political branches: first, the timing of avoidance (i.e., when in the life cycle of a case does a high court choose to avoid); and, second, a court’s candor about the decision (i.e., to what degree does a court openly acknowledge its choice to avoid). The Article draws on a series of avoidance strategies from apex courts around the world to tease out the relationships among timing, candor, and dialogue. As the first study to analyze avoidance from a comparative perspective, the Article generates a new framework for assessing avoidance by highlighting the impact of timing on the quality of dialogue, the possible unintended consequences of candor, and the critical trade-offs between avoidance and power

A Brook with Legal Rights: The Rights of Nature in Court

Over two decades ago, Professor Christopher Stone asked what turned out to be a question of enduring interest: should trees have standing? His question was recently answered in the affirmative by a creek in Pennsylvania, which successfully intervened in a lawsuit between an energy company and a local township to prevent the lifting of a ban against drilling oil and gas wastewater wells. Using that intervention, this Article examines whether such an initiative might succeed on a broader scale. The Article parses the structure, language, and punctuation of Article III, as well as various theories of nonhuman personhood to see if, like corporations, the Constitution might be sufficiently capacious to allow nature direct access to Article III courts. Finding toeholds in these theories, the Article identifies some institutional and practical problems with allowing nature to appear directly in court. The Article suggests possible answers to these problems, such as limiting the type of cases brought by nature to those that involve important and/or irreplaceable resources threatened by government inaction and requiring that nature must be represented by lawyers who have sufficient expertise, commitment, and resources to prosecute her interests. While success is not guaranteed, nor can it ever be, the author hopes that others, like the lawyers representing Little Mahoning Creek, will petition for judicial relief in nature‘s name. Given the rigidity and hostility of the current Court‘s standing jurisprudence, the intransigence of Congress, and the over-crowded agenda of the Executive Branch, this may be the only way to protect our disappearing natural resources

Briberyscape: an Artificial Society-Based Simulation Model of Corruption’s Emergence and Growth

This paper introduces the Corruption Emergence Model (CE Model), an artificial society-based simulation model of the corruption emergence. The model considers the attitude change as a generative mechanism. The attitude changes are described and simulated with a set of selforganizing processes which feed on each other in a cross-recurrent setup. The simulation model investigates the connection between the dynamics of the processes describing the social trust, the cognitive dissonance of the agents, their honesty, fairness and responsibility degrees and the emergence of corruption in the artificial societ