Joseph Sax’s illustrious career in the law should be remembered for the importance of blending visionary thinking with rigorous scholarship. At a time when private property rights were the only serious framework for managing air, water, land and seas, Professor Sax single-handedly breathed new life into the public trust doctrine with his seminal 970 law review article. Sax died on Sunday, which prompts these reflections on the far-reaching effects of his creative legal scholarship.
In the late 1960s, as a professor at the University of Colorado teaching courses on mining, water and oil and gas law, Sax realized that all of it was oriented towards the maximal private exploitation of natural resources. He asked: “How come there’s no public dimension to natural resource law, and the public who uses these areas and actually owns most of them doesn’t have a say in what goes on?”
His answer, in 1970, was “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” in the Michigan Law Review — a piece that went on to become one of the most influential law review articles ever.
The essay looked to Roman law, English common law and a handful of U.S. Supreme Court rulings to declare that the “public trust doctrine” empowers courts to intervene in government and market actions to protect citizens’ sovereign interests. The basic idea is that the government does not own natural resources; it is merely a trustee who must act on behalf of the unorganized public to protect their interests and those of future generations who cannot yet represent their interests in court.
The environmental movement of the time and sympathetic courts ratified this now-accepted notion of the public trust doctrine. The idea was also expanded and elaborated on in numerous areas beyond water, to include land, wildlife and other resources that everyone has a moral or human right to enjoy. The doctrine has also been adopted by many countries around the world, including India, Pakistan, the Philippines, Uganda, Kenya Brazil, South Africa, Ecuador and Canada.
The public trust doctrine became a prime legal rationale for courts to prevent the outright enclosure of countless bodies of water, beachfronts, and other natural resources. It was significant because while the doctrine has been incorporated into state constitutions and laws in more than a dozen states, it was chiefly a body of common law, to be interpreted by the courts. Since legislatures are prone to make sweetheart alliances with investors and corporations, the public trust doctrine has proven to be a critical legal tool for short-circuiting market/state corruptions of the public interest.
In the decades since Sax’s famous law review article, the public trust doctrine has been trimmed and hedged and limited in all sorts of ways. Many scholars did not want to defend a robust doctrine of common law over statutory law, and many courts were reluctant to act in ways that they feared would be perceived as political and one-sided.
But as Professor Mary Wood of the University of Oregon showed in her recent book, Nature’s Trust, the public trust doctrine can and should be used to “instruct government to protect and restore the Earth endowment.” Wood has been instrumental in applying the public trust doctrine to a series of lawsuits to force governments to limit carbon emissions in order to protect the Earth’s atmosphere – the so-called “Atmospheric Trust Litigation.” In a very real sense, the public trust doctrine empowers people to create their own commons-based solutions, whether through bottom-up means or through "state trustee commons" (as I call them).
Sax is less well-known for a book that I have found refreshing to read every few years – Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures. This 1999 book explores what moral and legal rights people ought to have in privately owned artifacts that have cultural significance: painting masterpieces, presidential papers, the Dead Sea Scrolls, Stonehenge, historic architectural structures, library and museum collections, and scholarly research. Does property law adequately express the entitlements that “owners” have in such “property”? What entitlements should ordinary people have to such cultural treasures?
Sax’s book explored the black-letter requirements of law and private property on the one hand, and how they often conflicted with our social norms and cultural expectations. Should a private owner be entitled to throw darts at a Rembrandt? He may own it, but doesn’t he or she also have certain obligations to future generations to act as a conscientious steward of a priceless cultural work? Don’t communities have certain interests in the preservation of paintings and historic buildings and documents that reflect on our common history and identity?
These questions are not abstract, academic questions; they crop up all the time in real life. Property owners actually threatened to destroy the archeological value of Stonehenge. Scholars actually withheld the Dead Sea Scrolls from public viewing for decades. American presidents and their estates have actually sought to prevent their official papers (paid for by taxpayers) from being made accessible to the public. John D. Rockefeller Jr. refused to pay for Diego Rivera’s famous mural at Rockefeller Center, including an image of Lenin – which ultimately resulted in the mural’s being destroyed.
How are we to understand this larger collective interest in something that is otherwise seen only as “private property”?
This was precisely the question that the public trust doctrine answered. Sax explored a similar question as it applied to cultural works in Playing Darts with a Rembrandt. He was intrigued by the fact that masterpieces are masterpieces because they combine the sentiment of the current generation with those of the past. “A Masterpiece is not one man thick, but many men thick,” according to Sir Kenneth Clark. So shouldn’t those many "layers" of people have certain entitlements to a masterpiece?
I am unaware whether Professor Sax ever recognized the role of Creative Commons licenses in partially answering his concerns. The licenses, after all, are an ingenious innovation in private law that stipulate quite clearly how a work may be made both a private, copyrighted work AND a publicly available, shareable work in limited respects. There remain many other areas in which neither Creative Commons licenses nor existing property law nor historic preservation laws provide adequate answers.
That was why Professor Sax’s legal scholarship was so rich and exciting: it carefully probed that “white zones” where the law was deficient but social and cultural sentiments too diffuse to provide guidance. This issue remains at the heart of achieving legal recognition for the commons. The liberal, property-oriented polity has trouble recognizing the collective interests of the commons – yet the interests of commoners are seen as undeniable. How should law deal with this quandary?