TWO WRONGS? CORRECTING PROFESSOR LAZARUS'S MISUNDERSTANDING OF THE PUBLIC TRUST DOCTRINE

摘要

This paper responds to Professor Richard Lazarus's recent and longstanding criticisms of the public trust doctrine, claiming that Richard misunderstands the nonabsolutist nature of the doctrine, which seeks accommodation between public and private property. Although he acknowledges the value of the public trust doctrine as a defense to claims of private takings, he thinks that the "background principles " defense it affords government regulators is a static doctrine. And he fails to see that the public trust doctrine hardly equips courts with the authority to displace legislative and administrative decision makers, hvstead, as epitomized in the well-known Mono Lake decision, the doctrine-an inherent limit on all sovereigns-requires those more representative branches to exercise their discretion in protecting trust resources from monopolization or destruction.